STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRYL JAMES McGLAMRY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8328RX

)

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 January 27, 1992.

APPEARANCES

For Petitioner: Darryl James McGlamry, pro se Number 914860

Dade Correctional Institution 19000 Southwest 377th Street Florida City, Florida 33034

For Respondent: Claire Dryfuss

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On December 30, 1991, the Petitioner, Darryl James McGlamry, filed a Petition for Determination of Validity of Rule challenging Rule 33-5.006(8), Florida Administrative Code. The case was assigned to the undersigned by Order of Assignment entered January 3, 1992.

The final hearing was scheduled for January 27, 1992, by Notice of Hearing entered January 6, 1992.

A Motion to Dismiss or, Alternatively, Motion to Abate, filed by the Respondent was denied by Order entered January 21, 1992.

The final hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and Phil Welch were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner and the other witness who testified during the hearing were located at Dade Correctional Institution in Florida City, Florida. The hearing was conducted by a telephone connection between the two locations and the use of speaker telephones.

During the formal hearing the Petitioner testified on his own behalf and presented the testimony of Clarence L. Cryer and Phil Welch. Petitioner offered two exhibits which were accepted into evidence. The Respondent presented the testimony of Phil Welch through cross examination. 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, Darryl James McGlamry, 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 rule at issue in this proceeding.

      
      

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, 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 inmate visitation and all other aspects of the operation of the prison system in Florida.

      
      

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

1. Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides:

   
   

   1. 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].

      
      

2. The Petitioner, a married male inmate, has made requests to have females, by whom he has had children and who have custody of those children, placed on his visiting list. The females by whom the Petitioner has children

   are his current wife, his former wife and a girlfriend. Those requests have been denied by the Respondent.

   
   

3. The Petitioner has attempted to add his former girlfriend and his former mother-in-law to his visiting list. His former wife and all of his children are currently on his visiting list. His current wife was not on his visitor list because she was also incarcerated at the time of the final hearing.

   
   

4. The Petitioner has suggested that he has been denied visitation with his children by his former wife and his current wife that he is unable to see because of his inability to have more than one female visitor.

   
   

5. The Petitioner's former girl friend was offered a special visitor's pass which was limited to week days but, due to her employment, did not visit the Petitioner.

   
   

6. Although the evidence proved that the application of the Challenged Rule to the Petitioner and the Petitioner's circumstances make it difficult for the Petitioner to have visitation with some of his children, the evidence failed to prove that the Challenged Rule itself bars married inmates from having visitation with minor children from other marriages or relationships.

   
   

7. The Respondent promulgated the Challenged Rule to limit the number of female visitors a married inmate may have for the following reasons:

   
   

   1. Male inmates tend to request visitation from more females than males. Due to limited space for visitation, the increasing number of inmates at every institution and the burden placed on the staff of the correctional institutions to handle visitation, the number of visitors had to be limited.

      
      

   2. Each visitor has to have a local law enforcement background check and each visitor must be checked by staff before visitation. Visitation is generally allowed between 9 and 3 on visiting days but visitors may all show up at essentially the same time. There is limited staff to handle the checking of visitors and the supervision of the visitation area.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1991).

   
   

   1. Standing.

      
      

9. 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 Challenged Rule. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

   
   

   1. Nature of the Petitioner's Challenge.

      
      

10. 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 legislative authority."

    
    

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

    
    

    1. "Invalid exercise of delegated legislative 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.

          
          

12. 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 specific facts supporting such an allegation.

    
    

13. In this case, the Petitioner has alleged that Rule 33-5.006(8), Florida Administrative Code, constitutes an "invalid exercise of delegated legislative authority" in violation of Section 120.52(8)(e), Florida Statutes, because the Rule is "arbitrary and capricious". The facts cited by the Petitioner in his Petition in support of this allegation are as follows:

    
    

    10. The Rule arbitrarily limits the number of single visitors of the opposite sex to one, while allowing an unlimited number of visitors who are of the same sex.

    
    

14. The Petitioner did not allege any facts in his Petition concerning the limitation on visitation of children of inmates from former marriages or other relationships. More importantly, however, the Petitioner failed to prove that the Challenged Rule is arbitrary and capricious regardless of the factual basis alleged by the Petitioner.

    
    

    1. Burden of Proof.

       
       

15. 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 33-5.006(8), Florida Administrative Code.

16. The Petitioner has alleged that Rule 33-5.006(8), Florida Administrative Code, is invalid pursuant to Sections 120.52(8)(e), Florida Statutes, because the Rule is "arbitrary and capricious". 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 Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

17. The weight of the evidence presented in this proceeding failed to prove that the Challenged Rule was promulgated without thought or reason or that the Challenged Rule is not supported by facts and logic. The Respondent has limited the number of visitors due to the limited space and personnel available to handle visitation to inmates. The Challenged Rule helps to achieve this goal. The Challenged Rule is not, therefore, without thought or logic.

    
    

18. Although there may be other means of achieving the goal of reducing visitors to a manageable number, the fact there may be other means of achieving a legitimate purpose of the Respondent and the failure of the Respondent to elect those means does not support a conclusion that the Respondent's action in adopting the Challenged Rule was without thought or logic. It is not necessary that the Respondent select the best method of resolving a problem. It is only necessary that the actions taken by the Respondent be taken with thought and logic. Where an agency is faced with more than one permissible interpretation of a statute, it is well established that:

. . . 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, C.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).

Department of Professional Regulation v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984). See also Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So.2d 258 (Fla. 1st DCA 1985).

ORDER

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

Florida Administrative Code, is an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes, and the Petitioner's Petition for Determination of Validity of Rule is DISMISSED.

DONE and ENTERED this 10th day of March, 1992, 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 10th day of March, 1992.

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 1.

2 3.

3 Hereby accepted.

4-5 6-7.

6 Not relevant. The last sentence is accepted in paragraph 6.

7 See 7-10.

8-9 Not relevant.

10 Hereby accepted.

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

COPIES FURNISHED:

Darryl James McGlamry Number 914860, Mail No. 222

Dade Correctional Institution 19000 S.W. 377th Street Florida City, Florida 33034

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Claire Dryfuss

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

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

Louis A. Vargas General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary General Counsel

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: 91-008328RX

Orders for Case No: 91-008328RX