STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

1. GERRY HARGROVE, JR., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 91-0397RX

   ) 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 April 30, 1991, in Cross City, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: W. Gerry Hargrove, Jr., pro se

   #110941

   Tamoka Correctional Institution 3950 Tiger Bay Road

   Daytona Beach, Florida 32014

   
   

   Robert R. Barnes, #095677 Thomas M. Roselli, #111839 Accepted as qualified

   representatives

   Cross City Correctional Institution

   Post Office Box 1500-61

   Cross City, Florida 32628-1500

   
   

   For Respondent: Arthur R. Wiedinger

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

   Suite 1603, The Capitol Tallahassee, Florida 32399-1050

   
   

   For Intervenor: Anne Hintenlang, pro se

   6 Marlboro Country Estates Archer, Florida 32618

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether Rules 33-3.005(2), (7) and (11), 33-3.0051, and 33-5.006(8),

   Florida Administrative Code, constitute an invalid exercise of delegated authority?

   PRELIMINARY STATEMENT

   
   

   On December 31, 1990, the Petitioner, W. Gerry Hargrove, filed a pleading titled "Petition for Administrative Determination of Rules(s) Hearing or in the Alternative a Document in Support of a Complaint under the Civil Rights Act, 42 U.S.C. s 1983." In the Petition, Rules 33-3.005, [33-3.0051] and 33-5.006(8),

   Florida Administrative Code, were challenged. The Petition was assigned to the undersigned on January 22, 1991.

   
   

   On February 6, 1991, a Notice of Hearing was entered setting the formal hearing for February 20, 1991.

   
   

   On February 7, 1991, the Petitioner filed a pleading titled "Petition to Amend Request for Administrative Determination and Order of Assignment." A document titled "Second Petition to Amend Request for Administrative Determination and Order of Assignment or in the Alternative a Document in Support of a Complaint under the Civil Rights Act, 42 U.S.C. s 1983," was filed by the Petitioner on February 8, 1991.

   
   

   On February 13, 1991, the Respondent, the Department of Corrections, filed a Motion to Dismiss. On February 27, 1991, the Respondent filed a Motion to Dismiss Amendment and Second Amendment to Petition.

   
   

   By Order entered March 11, 1991, the challenges to Rules 33-3.005 and 33- 3.0051, Florida Administrative Code, were dismissed with leave to file an amended petition designating the portions of Section 120.52(8), Florida Statutes, which the Petitioner alleged the challenged rules violate. The parties were also informed that the challenge to Rule 33-3.0051, Florida Administrative Code, could be barred by the doctrine of stare decisis based upon Cribbs v. Department of Corrections, 10 FALR 4219 (1988), depending upon which portion of Section 120.52(8), Florida Statutes, the Petitioner relied upon.

   Based upon the amended petition ultimately filed by the Petitioner, it is concluded that the doctrine of stare decisis does not bar the Petitioner's challenge to Rule 33-3.0051, Florida Administrative Code.

   
   

   The Motion to Dismiss the challenge to Rule 33-5.006(8), Florida Administrative Code, was denied in the March 11, 1991, Order.

   
   

   In the Petitioner's requests to amend his Petition the Petitioner attempted to challenge Cross City Correctional Institution Operating Procedure 4.03.06 and to challenge "I.O.P. 2.16 VIII(c)." The Petitioner's request to amend his Petition to add such a challenge was denied in the March 11, 1991, Order.

   Except to the extent that the Petitioner challenged Rule 33-3.005(11) [mis- numbered 33-5.005(11)], Florida Administrative Code, in his amended petition, the requests to amend were denied in the March 11, 1991, Order.

   
   

   On March 25, 1991, the Petitioner filed an "Amended Petition Pursuant to Order of March 11, 1991." In general, the Amended Petition complied with the Order of March 11, 1991.

   
   

   On April 1, 1991, an Amended Notice of Hearing was issued scheduling the formal hearing for April 30, 1991.

   
   

   On March 20, 1991, a Petition Requesting Permission to Intervene as a Party with a Substantial Interest was filed by Anne Hintenlang. Over objection by the Respondent, the Petition was granted.

   At the formal hearing the Petitioner testified and presented the testimony of Anne Hintenlang, William Gerry Hargrove, Sr., and Arnold Weichert. Petitioner offered nine exhibits. Petitioner's exhibits 5 and 6 were rejected and Petitioner's exhibits 1-4 and 7-9 were accepted into evidence. The Respondent called no witnesses and offered no exhibits. Finally, the parties offered a copy of Rules 33-5.006(8), 33-3.005 and 33-3.0051, Florida Administrative Code. These rules were marked as joint exhibits and were accepted into evidence.

   
   

   The transcript of the formal hearing was filed on July 31, 1991. Proposed final orders were, therefore, due on or before August 15, 1991. The Petitioner has filed a "Proposed Recommended Order" and a Brief in Support of Proposed Recommended Order. The Respondent has filed a Proposed Final Order. The Intervenor has filed a Proposed Final Order. A ruling on each proposed finding of fact contained in these pleadings 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. The Petitioner and the Intervenor; Standing.

      
      

      1. The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections.

         
         

      2. At all times relevant to this proceeding, the Petitioner was subject to the rules of the Respondent.

         
         

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

         
         

      4. At all times relevant to this proceeding, the Intervenor, Ann Hintenlang, was a married woman. The Intervenor is not related to the Petitioner.

         
         

      5. The Petitioner and the Intervenor have attempted to get approval for the Intervenor to visit the Petitioner.

         
         

      6. The Respondent has refused to approve the Intervenor as a visitor of the Petitioner because she is a married woman unrelated to the Petitioner. The Respondent's rejection of the Intervenor as a visitor is based upon the Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code.

         
         

   2. The Respondent.

      
      

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

         
         

      2. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted governing mail, 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. 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 not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as

         the department may prescribe. [Emphasis

         added].

         
         

      2. 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."

         
         

      3. Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following:

         
         

         1. Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The

            initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made. . . .

            
            

      4. Rule 33-5.006(7), Florida Administrative Code, provides:

         
         

         (7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere.

         
         

      5. Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code.

         
         

      6. Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides:

         (3) No visit should be denied:

         . . . .

         (c) for any reason unrelated to the security, order or rehabilitative objectives of the institution.

         
         

      7. Rule 33-5.006(8), Florida Administrative Code, provides the following:

         
         

         (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. [Emphasis added].

         
         

      8. The Respondent interprets the portion of Rule 33-5.006(8), Florida Administrative Code, challenged in this proceeding and emphasized in finding of fact 15, to allow a single male inmate to have a single female visitor and, therefore, prohibits a single male inmate from receiving visitation from a married female visitor not related to the inmate.

         
         

      9. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, as argued in its proposed final order, is intended "in part to deter potential problems involving visitors to the institution and to promote security of the institution and the inmates because of fights and conflicts which have occurred in the visiting park." See proposed finding of fact 7 of the Respondent's Proposed Final Order.

         
         

      10. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 is uniformly applied by the Respondent.

          
          

      11. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 has not been adopted as a rule pursuant to Section 120.54, Florida Statutes.

          
          

   4. Rule 33-3.005, Florida Administrative Code.

      
      

      1. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.005, Florida Administrative Code, other than the rule itself.

         
         

      2. The Petitioner has challenged Rule 33-3.005(2), (7) and (11), Florida Administrative Code.

         
         

      3. Rule 33-3.005(2), Florida Administrative Code, provides:

         
         

         (2) Legal mail shall be defined as:

         1. Mail to and from municipal, county, state and federal courts.

         2. Mail to and from state attorneys.

         3. Mail to and from private attorneys.

         4. Mail to and from public defenders.

      4. Rule 33-3.005(7), Florida Administrative Code, provides:

         
         

         (7) The institution shall furnish postage for mail to courts and attorneys and for pleadings to be served upon each of the parties to a lawsuit for those inmates who have no funds at the time the mail is submitted to the mailroom, but not to exceed payment for the original and two copies except when additional copies are legally required. The inmate shall be responsible for proving that copies in addition to the routine maximum are legally necessary.

         
         

      5. Rule 33-3.005(11), Florida Administrative Code, provides:

         
         

         (11) "Privileged mail" is a category that includes, mail to and from public officials, governmental agencies and the news media. Privileged mail may be opened only for inspection for contraband and only in the presence of the inmate. Such mail may not be read except for signature and letterhead. If necessary, it may be held for a reasonable time pending verification that it was sent by or is properly addressed to any attorney, a court, a public official, a governmental agency or a member of the news media.

         
         

      6. The weight of the evidence failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent.

         
         

   5. Rule 33-3.0051, Florida Administrative Code.

1. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.0051, Florida Administrative Code, other than the rule itself.

   
   

2. Rule 33-3.0051, Florida Administrative Code, governs the manner in which institutions of the Respondent are required to provide photographic copying services to inmates.

   
   

3. Although the Petitioner has not designated which specific language in Rule 33-3.0051, Florida Administrative Code, he believes is invalid, the Petitioner has evidently challenged the requirement of Rule 33-3.0051(3), Florida Administrative Code, that "[i]nmates will be charged $0.15 per page for standard legal or letter size copies . . . " and the following portion of Rule 33-3.0051(4), Florida Administrative Code:

   
   

   (4) Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there are no funds in his inmate account

   at the time the copies are completed and the assessment of cost is determined. If an inmate requesting copies has any funds in his account, he shall be required to pay for copies furnished him at the rate of $0.15 per page until the costs reduce his account to zero. . . .

   
   

4. The weight of the evidence failed to prove that Rule 33-3.0051, Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.0051, Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

5. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56(1), Florida Statutes (1989).

   
   

6. The Petitioner has argued that the rules at issue in this proceeding are unconstitutional. A Hearing Officer has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Long v. DOA,

   428 So.2d 688 (Fla. 1st DCA 1983); Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982). Therefore, the Petitioner's constitutional arguments have not been considered in this Final Order.

   
   

   1. Standing.

      
      

7. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules at issue in this proceeding. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

   
   

8. The evidence proved that the Intervenor also has standing to participate in this proceeding to the extent that the Petitioner has challenged Rule 33-5.006(8), Florida Administrative Code. Based upon the Respondent's application of this rule, the Intervenor was denied visitation with the Petitioner. The evidence failed to prove that the Intervenor has standing to participate in the Petitioner's challenge to Rules 33-3.005 and 33-3.0051, Florida Administrative Code.

   
   

   1. General.

      
      

9. 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."

   
   

10. 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.

    
    

11. 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.

    
    

12. In this case, the Petitioner has alleged that Rule 33-5.006(8), Florida Administrative Code, constitutes an "invalid exercise of delegated authority" in violation of Section 120.52(8)(d) and (e), Florida Statutes. The Petitioner has alleged that Rules 33-3.005 and 33-3.0051, Florida Administrative Code, constitute an "invalid exercise of delegated authority" in violation of Section 120.52(8)(a)-(e), Florida Statutes.

    
    

    1. Burden of Proof.

       
       

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

       
       

14. The Petitioner has alleged that Rule 33-5.006(8), Florida Administrative Code, is invalid pursuant to Section 120.52(8)(d) and (e), Florida Statutes.

    
    

15. Section 120.52(8)(d), Florida Statutes: A rule is considered vague and fails to establish adequate standards for agency decisions when the terms of the rule are so vague that persons of common intelligence must necessarily guess at the rule's meaning and differ as to the rule's application. State v. Cumming, 365 So.2d 153 (Fla. 1978). In City of St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982), the following test was applied to determine whether a rule was vague: (1) whether persons of common intelligence are required to guess at the rule's meaning; and

    (2) whether persons affected by the rule were properly apprised of the rule's effect on them.

    
    

16. A rule vests 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).

    
    

17. In determining whether a rule is vague, 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).

    
    

18. Giving the language of Rule 33-5.006(8), Florida Administrative Code, its plain meaning, it is concluded that Rule 33-5.006(8), Florida Administrative Code, is not vague. Nor does the rule fail to establish adequate standards for Respondent's decisions or vest unbridled discretion in the Respondent. Based upon the plain language of Chapter 33-5, Florida Administrative Code, inmates are given the general right to receive any person, married or single, male or female, as a visitor. See Rule 33-5.006(1), Florida Administrative Code. Rule 33-5.006(7), Florida Administrative Code, even encourages visitation with family members and friends once they have been approved. The Respondent's rules then go on to provide certain exceptions or limitations on the type and number of visitors an inmate may receive. See Rules 33-5.006 and 33-5.007, Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code, is such a limitation. Rule 33-5.006(8), Florida Administrative Code, provides that the general rule that inmates may see single females is limited, in the case of "[i]nmates not married" to "one single non-immediate family member of the opposite sex . . . ." Rule 33-5.006(8), Florida Administrative Code, is silent about whether married female visitors may visit male inmates.

    
    

19. In reaching the foregoing conclusions, the undersigned has not ignored the fact that the agency has expressed a different interpretation of Rule 33- 5.006(8), Florida Administrative Code: that male inmates may not have visitation with married female visitors who are not family members. This interpretation and the application thereof by the Respondent is contrary to Chapter 33-5, Florida Administrative Code, and Rule 33-5.006(8), Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code, when read in pari materia with Chapter 33-5, Florida Administrative Code, simply does not support the Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code, based upon a proper interpretation of that Rule, cannot be concluded to be invalid simply because of an improper interpretation of the rule by the Respondent.

    
    

20. In light of the fact that the Respondent's interpretation of Rule 33- 5.006(8), Florida Administrative Code, is a uniformly applied policy of the Respondent, it is concluded that the Respondent's interpretation constitutes an unpromulgated "rule" of the Respondent. See Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976); Department of Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); and Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). Having failed to comply with the requirements of Section 120.54, Florida Statutes, in adopting this policy, the Respondent's interpretation is an invalid rule. Id.

    
    

21. The undersigned's jurisdiction in this matter is limited to a determination of whether the challenged rules are invalid. Therefore, the

    undersigned has no authority over the Respondent's application of its interpretation of Rule 33-5.006(8), Florida Administrative Code, to the Petitioner. One avenue for redress of an agency's application of an improper interpretation of the agency's rules would normally be through a Section 120.57, Florida Statutes, proceeding. Such proceedings are not available, however, to inmates. See Section 120.52(12), Florida Statutes. The proper avenue for redress of the Respondent's application of its improper interpretation of Rule 33-5.006(8), Florida Administrative Code, might, therefore, lie in the Respondent's grievance procedure.

    
    

22. 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, at 763. The weight of the evidence presented in this proceeding failed to prove that Rule 33-5.006(8), Florida Statutes, as properly interpreted, was promulgated without thought and reason or that Rule 33- 5.006(8), Florida Administrative Code, as properly interpreted, is not supported by facts and logic.

    
    

23. In light of the fact that the Respondent's interpretation of Rule 33- 5.006(8), Florida Administrative Code, has been rejected and, as a policy of uniform application, has been found to constitute an invalid "rule" because of the failure of the Respondent to adopt the policy pursuant to Section 120.54, Florida Statutes, it is unnecessary to reach the issue of whether the Respondent's interpretation is arbitrary and capricious.

    
    

24. Case Law: The Petitioner has cited several cases in support of his challenge to Rule 33-5.006(8), Florida Administrative Code. All of those cases are distinguishable from the instant case. The cases cited by the Petitioner do not support a conclusion that the challenged rule constitutes an invalid exercise of legislative authority under Florida law.

    
    

25. Conclusion: Based upon the foregoing, it is concluded that the Petitioner failed to prove that Rule 33-5.006(8), Florida Administrative Code, as properly interpreted, constitutes an invalid exercise of legislative authority.

    
    

26. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, however, is a policy of uniform application which the Respondent has not adopted pursuant to Section 120.54, Florida Statutes. Consequently, the Respondent's interpretation of the rule constitutes an invalid "rule".

    
    

    1. Rules 33-3.005 and 33-3.0051, Florida Administrative Code.

    
    

27. The Petitioner has alleged that Rules 33-3.005(2), (7) and (11), and 33-3.0051, Florida Administrative Code, are invalid under Section 120.52(8)(a)- (e), Florida Statutes. No evidence, other than a copy of the challenged rules, was offered at the formal hearing.

28. Section 120.52(8)(a), Florida Statutes: The weight of the evidence failed to prove that the Respondent failed to adopt the challenged rules in accordance with Section 120.54, Florida Statutes.

    
    

29. Sections 120.52(8)(b) and (c), Florida Statutes: The weight of the evidence failed to prove that the challenged rules exceed the Respondent's authority to adopt rules. Section 944.09, Florida Statutes, gives the Respondent broad authority to adopt rules governing the treatment of inmates.

    
    

30. The weight of the evidence also failed to prove that the challenged rules enlarge, modify or contravene the specific provisions of law implemented.

    
    

31. Section 120.52(8)(d), Florida Statutes: Based upon the language of the challenged rules, and the lack of any evidence to the contrary, it is concluded that the challenged rules are not vague and they do not lack adequate standards for agency decisions or vest unbridled discretion in the agency.

    
    

32. Section 120.52(8)(e), Florida Statutes: Finally, the weight of the evidence presented in this case failed to prove that the challenged rules are arbitrary and capricious. No proof was offered by the Petitioner to support a conclusion that the challenged rules were promulgated without thought and reason or that the challenged rules are not supported by facts and logic.

    
    

33. Case Law: The Petitioner has cited several cases in support of his challenge to Rules 33-3.005 and 33-3.0051, Florida Administrative Code. All of those cases are distinguishable from the instant case. The cases cited by the Petitioner do not support a conclusion that the challenged rules constitute an invalid exercise of legislative authority under Florida law.

    
    

34. Conclusion: Based upon the foregoing, it is concluded that the Petitioner failed to prove that Rules 33-3.005 or 33-3.0051, Florida Administrative Code, constitute an invalid exercise of legislative authority.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioner's Petition for Determination of Validity of

Existing Rule is DISMISSED.

DONE and ENTERED this 30th day of August, 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 30th day of August, 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 filed a pleading titled "Proposed Recommended Order." This pleading contains no proposed findings of fact. The Petitioner also filed a pleading titled "Brief in Support of Proposed Recommended Order" which does contain some proposed findings of fact.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 12.

2 14.

3, 7 and 11 See 15.

1. Not relevant.

2. Statement of an alleged issue.

6, 8, 12-13, 15 Argument of law.

and 17-18

1. Not relevant.

2. and 14 Not supported by the weight of the evidence.

16 Argument of law or not supported by the weight of the evidence.

The Intervenor's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number* of Acceptance or Reason for Rejection

1 Not a proposed finding of fact.

2-9, 12-13, 18 Argument of law.

and 22-23

1. Summary of testimony. See 17.

2. and 15 Hereby accepted.

14 Argument of law or not supported by the weight of the evidence.

1. Summary of testimony, argument of law or not supported by the weight of the evidence.

2. and 20 Not supported by the weight of the evidence.

19 See 15. Argument of law.

21 Summary of testimony or not relevant.

1. Argument of law and not necessary to address this issue to dispose of the case.

2. Conclusion.

*The Intervenor did not number the paragraphs in her proposed order. The numbers used correspond with the number of the sequence in which each paragraph appears in the Intervenor's proposed final order.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1-2.

2 See 1-6, 9-20 and 26.

3 15.

4 4.

5 6.

1. See 16.

2. See 17.

COPIES FURNISHED:

W. Gerry Hargrove, Jr. #110941

Tamoka Correctional Institution 3950 Tiger Bay Road

Daytona Beach, Florida 32014

Thomas Michael Roselli #111839

Cross City Correctional Institution Post Office Box 1500-61

Cross City, Florida 32628-1500

Robert R. Barnes #095677

Cross City Correctional Institution Post Office Box 1500-61

Cross City, Florida 32628-1500

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

Tallahassee, Florida 32399-1050

Anne Hintenlang

6 Marlboro Country Estates Archer, Florida 32618

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.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

W. GERRY HARGROVE, JR., NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING MOTION AND

Appellant, DISPOSITION THEREOF IF FILED vs. CASE NOS. 91-1691

91-3046, & 91-3072

DEPARTMENT OF CORRECTIONS, (consolidated) DOAH CASE NO. 91-0397RX

Appellee.

/ Opinion filed June 25, 1992.

An Appeal from an Order of the Department of Corrections, Division of Administrative Hearings.

W. Gerry Hargrove, Jr., Pro Se, for Appellant.

Robert A. Butterworth, Attorney General; Claire D. Dryfuss, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

We affirm the orders of the Division of Administrative Hearings on the authority of Harris v. Department of Corrections, 499 So.2d 9 (Fla. 1st DCA 1986) (appellant's remedy lies not in Chapter 120, Florida Statutes, proceeding, but in normal grievance procedures available to inmates). We note that Rule 33-5.006(8), Florida Administrative Code, specifically permits an unmarried inmate like appellant "to have one single non-immediate family member of the opposite sex on the visiting list, after approval" [emphasis added] but does not address the circumstances here, where a married, female lay

minister and counselor affiliated with appellant's church congregation unsuccessfully attempted to be placed on the visiting list. In the final order, DOAH held that its "jurisdiction in this matter is limited to a determination of whether the challenged rules are invalid," but that it "has no authority over [the Department of Corrections'] application of its interpretation of Rule 33- 5.006(8), Florida Administrative Code, to the Petitioner." Because a section 120.57, Florida Statutes (1991), proceeding is unavailable to inmates, the proper method of redress concerning the Department of Corrections' interpretation of its visitation rules is in the normal grievance procedures. See Chapter 33-29, Florida Administrative Code..

AFFIRMED.

SHIVERS, MINER, and ALLEN, dd., CONCUR.

Docket for Case No: 91-000397RX

Orders for Case No: 91-000397RX