STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY HENDRIX, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4048RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 12, 1991.

APPEARANCES

For Petitioner: Larry Hendrix, pro se

#094601

Union Correctional Institution Post Office Box 221 (J-12) Raiford, Florida 32803

For Respondent: Arthur R. Wiedinger, Jr.

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1602, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether Rules 33-5.006(8) and 33-5.008(16), Florida Administrative Code, constitute an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On June 6, 1990, the Petitioner, Larry Hendrix, filed a Petition for Determination of the Invalidity of Existing Rules. On June 29, 1990, before the case was assigned to a Hearing Officer, the Respondent, the Department of Corrections, filed a Motion to Dismiss. This Motion was granted by the Director of the Division of Administrative Hearings by Order entered July 5, 1990. The Motion to Dismiss was granted on grounds other than those stated in the Motion to Dismiss.

The Petitioner filed a Notice of Appeal/Objection to Dismiss with the district court of appeal. On January 18, 1991, the district court of appeal issued an opinion rejecting the Division of Administrative Hearings' grounds for

the dismissal of the Petitioner's Petition and remanding the case to the Division of Administrative Hearings "to consider the grounds for dismissal which were actually raised in appellee's motion to dismiss."

The mandate of the district court of appeal was filed with the Division of Administrative Hearings on March 1, 1991. The case was reopened and assigned to the undersigned in April, 1991.

The case was set for formal hearing within thirty days after assignment to the undersigned. This hearing was cancelled, however, to give the undersigned an opportunity to consider the Motion to Dismiss filed by the Respondent, as directed by the district court of appeal. On May 30, 1991, an order was entered by the undersigned denying the Motion to Dismiss and giving the parties an opportunity to inform the undersigned when they would be available for the formal hearing.

On June 14, 1991, the formal hearing was scheduled for August 12, 1991. On August 1, 1991, an Amended Notice of Hearing was issued informing the parties that the formal hearing would be conducted by telephone. On August 8, 1991, the Petitioner filed an Objection to Hearing by Telephone. The Petitioner's objection was based upon his belief that he would not be given an opportunity to present any exhibits. On August 9, 1991, the Objection was overruled and the Petitioner was informed that he would be afforded an opportunity to file exhibits.

The formal hearing was conducted by telephone as scheduled. The undersigned, the court reporter, and counsel for the Department of Corrections, were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner and the witnesses who testified during the hearing were located at Union Correctional Institution in Raiford, Florida. One witness, Terry Moore, was located at Avon Park Correctional Institution, Avon Park, Florida. The hearing was conducted by a telephone connection between the two locations (three locations during the testimony of Terry Moore) and the use of speaker telephones.

During the formal hearing the Petitioner testified on his own behalf, and presented the testimony of Terry Moore, Clarence Little, Clifford Williams, Jr., and Vianna Austin. Petitioner offered exhibits 1-8 and A-Z. All of the Petitioner's exhibits, except exhibits 6 and 7, were accepted into evidence.

The Respondent presented the testimony of T. B. Long. The Respondent offered no exhibits.

The parties have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioner, Larry Hendrix, is an inmate in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rules at issue in this proceeding.

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida.

      
      

   2. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing visiting hours and privileges and all other aspects of the operation of the prison system in Florida.

      
      

3. Rule 33-5.006(8), Florida Administrative Code.

   
   

   1. At all times relevant to this proceeding, the Petitioner's marital status was single.

      
      

   2. Section 944.23, Florida Statutes, provides, in pertinent part:

      
      

      The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person shall be permitted to enter a state correctional institution except under such regulations as the department may

      prescribe. . . . [Emphasis added].

      
      

   3. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code, titled "Visitors."

      
      

   4. Visitation with approved family members or friends is encouraged by the Rule 33-5.006(7), Florida Administrative Code, to maintain home and community ties.

      
      

   5. Rule 33-5.006(8), Florida Administrative Code, provides:

      
      

      (8) Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified, and the spouse is removed from the list.

      
      

   6. The Petitioner presented no evidence during the formal hearing concerning Rule 33-5.006(8), Florida Administrative Code.

      
      

   7. The weight of the evidence failed to prove that Rule 33-5.006(8), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

      
      

4. Rule 33-5.008(16), Florida Administrative Code.

1. During part of 1990, Terry Moore was incarcerated at Union Correctional Institution, the same Institution the Petitioner in incarcerated in.

   
   

2. Vianna Austin is the sister of Terry Moore.

   
   

3. Ms. Austin is not incarcerated by the Respondent.

   
   

4. Ms. Austin and the Petitioner are not related.

   
   

5. In early 1990, Ms. Austin submitted a visitor information form to the Respondent in an effort to be placed on the Petitioner's approved visiting list.

   
   

6. By letter dated January 30, 1990, the Respondent informed Ms. Austin that she could not be added to Petitioner's visiting list because she was already on the visiting list of her brother, Terry Moore.

   
   

7. Ms. Austin made more than one request to be placed on the Petitioner's visiting list and her requests were denied by the Respondent for the reason stated in the January 30, 1990, letter.

   
   

8. In late 1990, Terry Moore was moved from Union Correctional Institution to another prison. During the formal hearing, Terry Moore was incarcerated in Avon Park Correctional Institution.

   
   

9. Subsequent to Terry Moore's transfer out of Union Correctional Institution, Ms. Austin again requested approval to visit with the Petitioner.

   
   

10. Ms. Austin's requests to be placed on the Petitioner's visiting list was denied by the Respondent before and after Terry Moore's transfer because she was an approved visitor of Terry Moore.

    
    

11. The Petitioner also requested that the Respondent approve Ms. Austin as his visitor. These requests, which were made before and after Terry Moore's transfer from Union Correctional Institution, were denied by the Respondent because she was on Terry Moore's approved visiting list.

    
    

12. The Respondent's denial of Ms. Austin's requests to visit the Petitioner and the Respondent's denial of the Petitioner's requests for visitation by Ms. Austin were based upon Rule 33-5.008(16), Florida Administrative Code.

    
    

13. Rule 33-5.008(16), Florida Administrative Code, provides:

    
    

    (16) Regular and special visitors cannot

    be on more than one inmate's approved visiting list, except for immediate family. A visitor may not visit an inmate and then decide to visit further with friends of that inmate.

    
    

14. The Respondent interprets Rule 33-5.008(16), Florida Administrative Code, to prohibit a person from visiting more than inmate unless each inmate the person visits is part of the inmate's immediate family. The Respondent's interpretation applies regardless of the location of the inmates the visitor wishes to visit.

15. Rule 33-5.008(16), Florida Administrative Code, was promulgated by the Respondent to prevent triangle relations. Triangle relationships tend to cause security problems, such as fights between inmates and/or altercations between visitors and inmates and to deter romantic relationships with inmates.

    
    

16. The Respondent makes approximately 100,000 inmate transfers each year. Therefore, although inmates may not be in the same institution at a given time, it is not reasonably possible for the Respondent to insure that inmates that have the same visitor on their visiting list are not at some later time transferred to the same institution.

    
    

17. Some inmates have been able to get visitors on their visiting lists even though the visitor was on another inmates visiting list in violation of Rule 33-5.008(16), Florida Administrative Code. The weight of the evidence failed to prove that the Respondent allows such visitation if the Respondent is aware of the fact that the visitor is already on one approved visiting list.

    
    

18. The weight of the evidence failed to prove that Rule 33-5.008(16), Florida Administrative Code, does not establish adequate standards for decisions by the Respondent, or vests unbridled discretion in the Respondent or that it is arbitrary and capricious.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

19. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1989).

    
    

    1. Standing.

       
       

20. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules of the Respondent, including the rules at issue in this proceeding. See Department of Corrections

    v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    
    

    1. Nature of the Petitioner's Challenge.

       
       

21. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated authority."

    
    

22. What constitutes an "invalid exercise of delegated authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

          
          

23. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the facts supporting such an allegation.

    
    

24. In the Petitioner's proposed final order in this case, the Petitioner has alleged that Rule 33-5.008(16), Florida Administrative Code, constitutes an "invalid exercise of delegated authority" in violation of Section 120.52(8)(d) and (e), Florida Statutes, because this Rule "fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency" and is "arbitrary and capricious".

    
    

25. The Petitioner has also alleged in his proposed final order that Rule 33-5.006(8), Florida Administrative Code, is an "invalid exercise of delegated authority" in violation of Section 120.52(8)(b) and (e), Florida Statutes, because the "agency has exceeded its grant of rulemaking authority" and the Rule is "arbitrary and capricious".

    
    

26. In the Petitioner filed by the Petitioner, the Petitioner has also alleged that the challenged rules are unconstitutional. A Hearing Officer has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); Long v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    
    

27. The Petitioner has also alleged that the challenged rules have been improperly applied by the Respondent. The application of the rules cannot be raised as an issue in a proceeding brought pursuant to Section 120.56, Florida Statutes.

    
    

    1. Burden of Proof.

       
       

28. The burden of proof in this proceeding was on the Petitioner. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    1. The Validity of Rule 33-5.008(16), Florida Administrative Code.

    
    

29. The Petitioner has alleged that Rule 33-5.008(16), Florida Administrative Code, is invalid pursuant to Sections 120.52(8)(d) and (e), Florida Statutes, because the Rule "fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency" and is "arbitrary and capricious".

    
    

30. Section 120.52(8)(d), Florida Statutes: A rule vest unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, 125 So.2d 749 (Fla. 1960).

    
    

31. In determining whether a rule fails to establish adequate standards for agency decisions or vests unbridled discretion in an agency, the language of the rule must be given its plain meaning. Boca Raton Artificial Kidney Center

    v. Department of Health and Rehabilitative Services, 493 So.2d 1055 (Fla. 1st DCA 1986).

    
    

32. Giving the language of Rule 33-5.008(16), Florida Administrative Code, its plain meaning, it is concluded that the Rule does not fail to establish adequate standards for Respondent's decisions or vest unbridled discretion in the Respondent. Based upon the plain meaning of Rule 33-5.008(16), Florida Administrative Code, a visitor may be on the visiting list of only one inmate, unless that visitor is a family member of more than one inmate.

    
    

33. The evidence the Petitioner presented concerning how employees of the Respondent may have applied Rule 33-5.008(16), Florida Administrative Code, by allowing some visitors to be on more than one inmate's visiting list, does not support a conclusion that the Rule is invalid. At best, this evidence merely proves that the Respondent may have failed to follow the clear requirements of the Rule. The Respondent's failure to follow its rules does not make those rules invalid.

    
    

34. Section 120.52(8)(e), Florida Statutes: An arbitrary and capricious action has been defined as follows:

    
    

    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.

    
    

35. The weight of the evidence presented in this proceeding failed to prove that Rule 33-5.008(16), Florida Administrative Code, was promulgated without thought or reason or that the Rule is not supported by facts and logic.

    
    

36. The Respondent presented evidence that indicated that a "triangle" can be created by visitors being allowed to see more than one inmate. The Respondent also presented evidence that when triangles form they may result in conflicts within an institution. The Respondent, by attempting to prevent such conflicts, has some reasonable basis for the Rule.

    
    

37. Applying the Rule when inmates are at different institutions is a more difficult question. Although less persuasive, the Respondent did present evidence that inmates, although not at the same institution at a given time, may

    end up at the same institution because of the numerous transfers of inmates the Respondent is involved with. The Respondent also presented evidence that it is difficult to keep track of such transfers to insure that inmates with the same person on their visiting list are not placed in the same prison. Based upon this evidence, it is concluded that the Petitioner has failed to establish that Rule 33-5.008(16), Florida Administrative Code, is without thought or reason, or was adopted irrationally, or is not supported by facts or logic, or despotic.

    
    

38. Conclusion: Based upon the foregoing, it is concluded that the Petitioner failed to prove that Rule 33-5.008(16), Florida Administrative Code, "fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency" or is "arbitrary and capricious". Therefore, Rule 33- 5.008(16), Florida Administrative Code, does not constitute an invalid exercise of delegated authority pursuant to Section 120.52(8)(d) or (e), Florida Statutes, in violation of Section 120.56, Florida Statutes.

    
    

    E. The Validity of Rule 33-5.006(8), Florida Administrative Code.

    
    

39. The Petitioner has alleged that Rule 33-5.006(8), Florida Administrative Code, is an "invalid exercise of delegated authority" in violation of Section 120.52(8)(b) and (e), Florida Statutes, because the "agency has exceeded its grant of rulemaking authority" and the Rule is "arbitrary and capricious".

    
    

40. Section 120.52(8)(b), Florida Statutes: The Respondent's rulemaking authority is very broad. The weight of the evidence failed to prove that the Respondent has exceeded that authority in promulgating Rule 33-5.006(8), Florida Administrative Code. Section 944.09, Florida Statutes, gives the Respondent broad authority to adopt rules governing the treatment of inmates. Section 944.09(1)(n), Florida Statutes, authorizes the Respondent to promulgate rules related to "[v]isiting hours and privileges."

    
    

41. Section 944.23, Florida Statutes, prohibits persons from visiting state correctional institutions unless the Respondent authorizes their visitation.

    
    

42. Section 120.52(8)(e), Florida Statutes. The weight of the evidence presented in this case failed to prove that Rule 33-5.006(8), Florida Administrative Code, is arbitrary or capricious. No proof was offered by the Petitioner to support a conclusion that this Rule was promulgated without thought or reason or that the Rule is not supported by facts and logic.

    
    

43. Conclusion. Based upon the foregoing, it is concluded that the Petitioner failed to prove that Rule 33-5.006(8), Florida Administrative Code, is invalid because the "agency has exceeded its grant of rulemaking authority" or that the Rule is "arbitrary and capricious". Therefore, Rule 33-5.006(8), Florida Administrative Code, does not constitute an invalid exercise of delegated authority pursuant to Section 120.52(8)(b) or (e), Florida Statutes, in violation of Section 120.56, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner has failed to prove that Rules 33-5.006(8) and

33-5.008(16), Florida Administrative Code, are an invalid exercise of delegated authority in violation of Section 120.56, Florida Statutes, and the Petitioner's Petition for Determination of the Invalidity of Existing Rules is DISMISSED.

DONE and ENTERED this 19th day of September, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1991.

APPENDIX TO FINAL ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1. 16-17. See 28 concerning footnote 2 of this proposed finding of fact.

2. See 18.

5-6 See 22. The exchange between the Petitioner and T. B. Long referred to in these proposed findings of fact is not relevant to this proceeding. The memorandum the Petitioner asked Mr. Long about is not inconsistent with Rule 33-5.008(16), Florida Administrative Code. Nor does it relate directly to the Petitioner's challenge in this proceeding. That memorandum merely provides that an inmate can remove a family member from his or her visiting list so that the family member can visit another inmate.

7 Not relevant to this proceeding. Whether the Petitioner has instituted other proceedings concerning the challenged rules and the outcome of those proceedings has no bearing on the validity of the rules. 8 19-20.

9 21.

10 See 22.

11-13 Not relevant to these proceedings.

14 The position taken by the Secretary of the Respondent in another case is not inconsistent with the Respondent's position in this case.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

Larry Hendrix #094601

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Arthur R. Wiedinger Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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: 90-004048RX

Orders for Case No: 90-004048RX