STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS A. HALLIWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0741RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On February 1, 1991, the Petitioner, Thomas A. Halliwell, filed a Request for Administrative Hearing with the Division of Administrative Hearings. In the Request for Administrative Hearing, Mr. Halliwell requested an administrative hearing pursuant to Section 120.56, Florida Statutes (1989), "to determine the validity of specific rules pertaining to visiting policies at Union Correctional Institution."

By Order of Assignment entered February 6, 1991, the Request for Administrative Hearing was assigned to the undersigned.

On February 12, 1991, the Department of Corrections filed a Motion to Dismiss. Mr. Halliwell did not file a response to the Motion to Dismiss. On February 27, 1991, an Order Granting Motion to Dismiss was entered. Pursuant to this Order Mr. Halliwell was informed that he had failed to challenge any rule or directive of the Department of Corrections in his Request for Administrative Hearing. Mr. Halliwell was, therefore, informed that his Request for Administrative Hearing was being dismissed with leave to file, on or before March 11, 1991, an amended petition challenging a rule of the Department of Corrections. Mr. Halliwell has failed to file an amended petition.

In his Request for Administrative Hearing, Mr. Halliwell alleged that he is incarcerated in Union Correctional Institution (hereinafter referred to as "Union"). It is further alleged that T. B. Long, a Correctional Probation Supervisor II at Union, issued a memorandum to the "classification staff" at Union on January 18, 1991, and posted the memorandum on bulletin boards throughout Union. Mr. Halliwell alleged that the memorandum provides for the following visitation policies:

In that memorandum, Long specifically instructed his staff to deny all applications for visiting passes in which (a) the prospective visitor was not on an inmate's approved visiting list, and (b) any prospective female visitor was not known to the inmate she wished to visit prior to the inmate's incarceration.

Mr. Halliwell challenges these alleged requirements of the memorandum. In particular, Mr. Halliwell challenges the alleged requirement contained in the memorandum that prospective visitors be on an inmate's approved visiting list as follows:

Department of Corrections Policy and procedure Directive No. 3.04.12 (Exhibit B), specifically permits visitors who are not on an approved visiting list. Those "special passes" are designed to enhance rehabilitative efforts and promote the inmate's continued contract with society. The Department recognized the need for such procedures, and the passes have been permitted until the date of Long's memorandum.

Mr. Halliwell challenges the alleged directive of the memorandum that inmates cannot have female visitors who were not known to the inmate prior to the inmate's incarceration as follows:

Nowhere in Department of Corrections Rules and Regulations, Policy and Procedure Memoranda, or in the Florida Statutes can an offensive and flagrantly illegal exclusion to established visiting policy be found as exists in Long's memorandum regarding female visitors. Long's intent remains cloudy.

What is clear, however, is his illegal and sexually discriminatory attempt to restrict [sic] visitation based solely on the length

of a social relationship and the gender of the visitor. By Long's standard, inmates incarcerated for 15-20 years may be totally ineligible to receive visitors. Moreover,

the memorandum implicitly denies any beneficial aspects to friendships cultivated during incarceration. Such a narrow, parochial visitation policy is patently illegal as well as demeaning to both inmates and their friends. Further, Long has absolutely no authority with which to arrogate such a responsibility.

Finally, Mr. Halliwell requests the following relief: "an administrative hearing . . . to determine the validity of the memorandum in question."

Section 120.56, Florida Statutes (1989), provides, in pertinent part, the following:

1. Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

2. The petition seeking an administrative determination under this section shall be in writing and shall state with particularity

facts sufficient to show the person seeking relief is substantially affect by the rule and facts sufficient to show the invalidity of the rule. . . . [Emphasis added].

In this proceeding, Mr. Halliwell has failed to challenge any rule of the Department of Corrections. Instead, Mr. Halliwell has challenged a memorandum issued by an employee of Union which, based upon the Request for Administrative Hearing, applies only to Union.

The courts of Florida have determined that individual prisons are not agencies and, therefore, a memorandum issued at the prison level does not constitute an agency rule subject to Chapter 120, Florida Statutes. See Hendrix

v. Department of Corrections, 16 FLW D282 (Fla. 1st DCA 1991); Adams v. Barton,

507 So.2d 665 (Fla. 1st DCA 1987); Corrections v. Piccirillo, 474 So.2d 1199 (Fla. 1st DCA 1985); Cribbs v. Department of Corrections, 470 So.2d 757 (Fla. 1st DCA 1985); Adams v. Department of Corrections, 469 So.2d 164 (Fla. 1st DCA 1985); Department of Corrections v. Holland, 469 So.2d 166 (Fla. 1st DCA 1985); and Department of Corrections v. Adams, 458 So.2d 354 (Fla. 1st DCA 1984). Therefore, an inmate may not institute a Section 120.56, Florida Statutes (1989), proceeding to challenge a memorandum or operating procedure of the prison in which he is incarcerated.

An inmate who disagrees with a memorandum or operating procedure of the institution in which he is incarcerated has two alternative avenues of recourse:

1. to resolve any disagreements or disputes they might have with the tailoring and implementation of the particular prison procedure through the normal inmate grievance procedure already available; or (2) to challenge either the rule or directive upon which the institutional level regulations were based, pursuant to the rule-making requirements of Chapter 120.

Hendrix, at 16 FLW D282.

Based upon the foregoing, Mr. Halliwell's allegations may suggest the basis for a grievance pursuant to Chapter 33-29, Florida Administrative Code. Mr.

Halliwell has not, however, properly instituted a Section 120.56, Florida Statutes (1989), proceeding. Therefore, the Request for Administrative Hearing in this case must be dismissed.

In addition to failing to challenge a rule of the Department of Corrections, Mr. Halliwell has failed to allege facts sufficient to show that he is substantially affect by the memorandum as required by Section 120.56(2), Florida Statutes (1989). A party will be considered to have alleged facts sufficient to show that he or she is substantially affected if the party alleges facts that indicate that he or she will suffer a direct injury in fact of "sufficient immediacy and reality" by the application of a challenged rule. See Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215. Although Mr. Halliwell has alleged that he is incarcerated in Union and that Mr. Long's memorandum applies to prisoners incarcerated in Union, he has not alleged that the suggested limitations of the memorandum actually apply to him. Mr. Halliwell has, therefore, failed to

allege facts sufficient to indicate that he will suffer a direct injury from enforcement of the memorandum.

Based on the foregoing, it is

ORDERED that the Request for Administrative Hearing is hereby DISMISSED. DONE and ORDERED this 14th day of March, 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 14th day of March, 1991.

COPIES FURNISHED:

Thomas A. Halliwell #041901

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083-0221

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

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Richard L. Dugger, 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: 91-000741RX

Orders for Case No: 91-000741RX