STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD EUGENE HALPIN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2973RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case at the DeSoto Correctional Institution on June 11, 1999, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Donald Eugene Halpin, pro se

DeSoto Correctional Institution Post Office Drawer 1072 Arcadia, Florida 33821-1072

For the Respondent: Dell Edwards, Esquire

Assistant Attorney General 2002 N. Lois Avenue, Suite 700

Tampa, Florida 33607 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's Rule 33- 3.004(6)(a)&(g) is a valid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

By Petition dated May 8, 1991, Petitioner seeks administrative review of the legality of Chapter 33-3.004(6)(a) & (g), F.A.C., which is a portion of the rules of the Department of Corrections. The matter was forwarded to the Division of Administrative Hearings where, on May 17, 1991, the file was assigned to Hearing Officer Larry J. Sartin. The undersigned, to whom the case was subsequently assigned, issued a Pre-Hearing Order on May 24, 1991, and a Notice of Hearing, setting the matter for June 11, 1991, on May 29, 1991. The case was heard as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Henry C. Ross and Richard Edward Jackson, both inmates at DeSoto Correctional Institution, (DeSoto). He also introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Warren W. Cornell, Assistant Superintendent at DeSoto and introduced Respondent's Exhibit A. With the

agreement of the parties, the undersigned officially recognized the rule in issue here.

No transcript was provided and neither party submitted post-hearing proposed Findings of Fact. Petitioner, however, subsequent to the hearing, filed a Motion For Sanctions For Tampering With Evidence in which he alleged that immediately after the hearing on June 11, 1991, Inmate Ross, who had testified at the hearing and had presented certain photographs to the Hearing Officer which were immediately returned to him after viewing, was called to the office of DeSoto's chief security officer and directed to destroy or get rid of the photographs in question as they were contraband. At that time, it is alleged, Ross was advised by DeSoto officials that the undersigned had already made a ruling in this case which justified that order. No such ruling had or has been made in this case by the undersigned prior to this Order.

The pleading has not been contradicted or even commented upon by counsel for the Department. However, the undersigned has no authority to impose sanctions such as are requested by Petitioner in his Motion.

FINDINGS OF FACT

1. Petitioner, Donald Eugene Halpin, has been an inmate at DeSoto Correctional Institution since February, 1991. He is serving a sentence to life in prison. Sometime in March, 1991 he received a letter from a female friend through the prison mail system. Enclosed with the letter were several photographs of this female friend who was in the nude. They were of the sender only and did not show either her sexual organs or any sexual activity. She had sent him similar photos while he was confined at Marion Correctional Institute and he has received others over the past 16 years he has been incarcerated in one or another institution within the Department system. At all other institutions where he has been held, he was permitted to retain these or similar photographs. At DeSoto he was not.

   
   

2. The photographs were never given to the Petitioner by the DeSoto officials but were returned to the sender. This action was justified to him by Institution officials on the basis that other inmates could get into his locker where the photos would be kept and this could result in difficulty or disagreement between or among the inmates. The denial was justified on the language contained on the back of the institutions mail form which reads:

   
   

   Mail containing obscene items, language, or references made in a suggestive manner (which would not be acceptable from a moral standpoint) shall not be permitted. Mail

   received which does not comply with regulations shall be returned to the sender.

   
   

3. The Department's rule in issue has been in effect for a considerable time and has system-wide application. The current Assistant Superintendent at DeSoto, Mr. Cornell, uses it at the facility about 4 -5 times a month. It is justified under the rationale that nude photographs of an inmate's family member are dangerous to have. Inmate living areas are not air-conditioned and when temperatures are high, tempers often flare. Even though most inmates claim there is no animosity among them, such feelings exist, especially if the subject of this type of photograph comes to visit. In prison especially, lewd or derogatory comments about an inmate's family are not well tolerated and may result in an altercation. Mr. Cornell can remember one case in which it did,

   and he feels this constitutes a risk to the security of the institution. DeSoto's assault rate is lower than that of other close security installations because, he believes, of this rule and how it is applied.

   
   

4. Magazines containing photographs of a similar nature are allowed as a part of the approved reading for inmates in Department facilities. Such magazines as Oui, Penthouse, Playboy, and Playgirl Magazine are contained on the approved periodical list attached to and made of part of the Department's Policy and Procedure Directive 4.10.50 dealing with admissible reading material, issued on May 10, 1979 and revised on May 25, 1982. These magazines are justified on the basis that the photo subjects are not known to or related to inmates, and the photographs may not be cut out of the magazines and posted in inmate living areas. Consequently, it is felt, these magazines pose no threat.

   
   

5. The pictures allowed to inmates do not have to be of individuals on the inmate's visiting list. The test of whether a photo will be approved is not the subject of the photo but the nature of the pose. When mail for inmates is received at the institution, it is reviewed by several people in the chain of command overseeing the particular inmate. A Corrections Officer I is the mail room person who first opens the inmate mail. It is then screened by a Sergeant and a Lieutenant as well as the Major in charge of each of the institution's major units.

   
   

6. Another inmate, Henry Ross, received nude photos of family members and girlfriends which were confiscated. When he filed a grievance, the pictures were returned to him but he was advised he would not be allowed any more. Mr. Cornell indicated he was not aware of those photos but, having viewed them at the hearing, would have denied them entrance if he had. Parenthetically, the day of this hearing, after Ross had testified on behalf of Petitioner and had shown his photos to the Hearing Officer, he was called in and advised a ruling had been made that his photos were not proper and he was required to get rid of them. He has also, however, received other photos of this type over the nine years he has been incarcerated and has been allowed to keep them. He has also had access to the magazines described above.

   
   

7. Inmate Jackson, who has been at prisons in the Department system for more than 14 years, has not received any nude photos from outside but personally knows of inmates who have while at other institutions. In all his years of incarceration, he has no knowledge of any violence among inmates as a result of nude photos even though lockers have been broken into. Jackson claims that neither he nor Ross would ever engage in violence as a result of a derogatory remark regarding any pictures they might have nor would they take such action if their lockers were broken into. The inmates see DeSoto's implementation of the rule as arbitrary and unjustified.

   
   

8. In this case, when Halpin's pictures were returned without being given to him, he first filed an informal grievance which was denied. He then filed a formal grievance which was also denied, and an appeal of that denial to the Department Secretary who denied it as well.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

10. In his Petition For Administrative Review, Petitioner attacks Chapter 33-3.004(6)(a)&(g), F.A.C., a rule of the Department of Corrections, as being vague, arbitrary "or" capricious in its application [emphasis supplied]. He urges that the rule regarding nude photographs is arbitrary or capricious because magazines containing similar photographs, commonly referred to as "girly" magazines, are allowed into the institution. Since an inmate's wife or girlfriend could, conceivably, pose for one of those magazines, such photo would be allowed, but a directly mailed photo of the same wife or girlfriend, in a similar pose, would be barred.

    
    

11. Petitioner also urges that Respondent's arguments relating to the alleged access by inmates to the lockers of other inmates is false and not persuasive. Such unlawful entry would be, he contends, unlikely because of the security in the institution, but in any case, avenues for redress other than aggression are available to the aggrieved inmate.

    
    

12. Petitioner further notes that other institutions within the Department take a different approach to the rule in question and allow such photographs, and, therefore, the rule is arbitrary and capricious in its application.

    Because the rule does not define the criteria for "obscene" materials, it is, he claims, vague.

    
    

13. The rule in issue, 33-3.004(6)(a) & (g), F.A.C., reads:

    
    

    Outgoing or incoming mail may be disapproved for mailing or delivery to the inmate if any part of it:

    1. is obscene or contains a graphic presentation of sexual behavior that is in violation of law;

       * * *

       (g) otherwise presents a clear and substantial threat to the security, order, or rehabilitative objectives of the Correctional System, or to the safety of any person.

       
       

14. The burden of proof in this case rests upon the Petitioner to show, by a preponderance of the evidence, that the challenged rule is an invalid exercise of delegated legislative authority, Agrico Chemical Co. v. State, 365 So.2d 759 (Fla. 1st DCA 1978, cert. denied. 376 So.2d 74 (Fla. 1979). In that case, the court required the challenger to show that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the rule requirements are not reasonably related to the purpose of the enabling legislation; or that the rule, or its requirements, are arbitrary and capricious.

    
    

15. The term "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as "... action which goes beyond the powers, functions and duties delegated by the legislature." The burden of showing that an agency action is an invalid exercise of delegated legislative authority is a difficult one. Agencies are given wide discretion by the courts in the exercise of their lawful rulemaking authority, and the construction given a statute by an agency is not to be overturned unless clearly erroneous, Austin

    v. Department of Health and Rehabilitative Services, 495 So.2d 777, 779 (Fla. 1st DCA 1986).

16. The term, "obscene" has been defined by the courts on numerous occasions and its use in this rule is neither vague nor unclear. Remaining for resolution, then, is whether the rule is either arbitrary or capricious. Clearly, as can be seen from a simple reading of its terms, it is not. The basis for the control over the introduction of obscene materials into a highly charged, unnatural living situation such as a prison is obvious. It is to prevent an already tense and difficult situation from becoming explosive. This is perfectly reasonable and justified.

    
    

17. However, the application of the rule at DeSoto Correctional Institution appears to be somewhat questionable. On the one hand, there can be no legitimate objection to the introduction of truly obscene photographs into the facility. Photos which depict sex acts between men and women, single sex partners, or other similar participants can legitimately be proscribed from introduction into a prison environment. By the same token, photographs of the suggestive display of the sexual organs may also be excluded. Disregarding the esthetics and taste of nude photos, to allow introduction of publications such as those described, supra, and yet to deny a photograph of a party in varying stages of undress, or totally nude, when the photograph does not fall within the categories of photographs described earlier in this paragraph as objectionable, seems to be clearly devoid of reason. However, this is not a defect in the rule, but more a failure of application which can be corrected by an intelligent application of the terms of the legitimate rule.

    
    

18. The avenue for redress of this defect in application lies in the fair and rational application of the grievance procedure. A routine, regular denial of grievance without full, fair and rational consideration is a sham and worse than no procedure at all.

    
    

19. Nonetheless, the rule complained of is not vague, arbitrary or capricious. Any correction must come in application of the rule, not amendment thereof. It is, therefore:

ORDERED THAT

The Petition for Administrative Review of Chapter 33-3.004(6)(a) & (g), F.A.C., filed by Donald Eugene Halpin is hereby dismissed.

DONE and ORDERED in Tallahassee, Florida this 12th day of July, 1991.

ARNOLD H. POLLOCK, 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 12th day of July, 1991.

COPIES FURNISHED:

Donald Eugene Halpin #076151, Mail No. 575

DeSoto Correctional Facility Post Office Drawer 1072 Arcadia, Florida 33821-1072

Dell Edwards, Esquire Assistant Attorney General 2002 N. Lois Avenue, Suite 700

Tampa, Florida 33607

Harry K. Singletary, Jr. Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

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

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

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, (OR, WHEN APPROPRIATE, A CERTIFICATE OF INDIGENCE), 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: 91-002973RX

Orders for Case No: 91-002973RX