STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MCARTHUR HELMS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1887RXP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

By Motion To Dismiss dated March 31, 1992, the Department of Corrections, by and through its attorney, moves to dismiss the petition filed in the above- styled proceedings. As grounds therefor, it is alleged the Petition purports to challenge the Superintendent, Polk Correctional Institution, notice changing visitation procedures at that institution. A review of the Petition clearly shows the challenged "rule" is a memorandum promulgated by the Superintendent.

As such, it is in the nature of an internal management memorandum as defined in Section 120.52(16)(a), Florida Statutes.

A similar memorandum promulgated by the Superintendent, Union Correctional Institution (UCI), prescribing visiting hours at UCI was challenged in Department of Corrections v. Adams, et al., 458 So.2d 354 (Fla. 1st DCA 1984). In Department of Corrections v. Adams, the court stated at p. 356:

. . . the visiting regulations promulgated by the Superintendent at UCI do not constitute agency rules subject to Chapter 120, Florida Statutes, requirements. individual

prisons are not "agencies" within the meaning of the Administration Procedures Act . . . .

Parenthetically, it appears the Petitioner here challenges a change in visiting procedures which limit visitors prisoners may have to either Saturday or Sunday, but not both. Rule 33-5.008(2), Florida Administrative Code, provides regular visiting hours shall normally be for 6 hours on Saturday or Sunday, but not both. The challenged memo appears to fully comply with this rule.

In a similar case, Department of Corrections v. Adams, et al., 464 So.2d 1316 (Fla. 1st DCA 1985), the Court held the Superintendent, Baker Correctional Institution, Institutional Operation Procedure (I0P), which limited visiting to Saturday or Sunday, but not both, was not a rule, but was a permissible exercise of discretion on the part of the Superintendent.

From the foregoing, it is concluded that the memorandum here challenged is similar, if not identical, to those challenged in the two Adams cases and is not a rule subject to challenge pursuant to Chapter 120, Florida Statutes. It is, therefore,

ORDERED that the petition filed by McArthur Helms challenging the Superintendent, Polk Correctional Institution, memorandum changing visiting procedures be dismissed.

DONE and ORDERED this 7th day of April, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1992.

Copies furnished to:

McArthur Helms #232899

Polk Correctional Institution 3876 Evans Road, Box 50

Polk City, FL 33868

Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Claire Dryfuss, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050

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

Liz Cloud, Chief

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

Donna Malphurs

Department of Corrections 2601 Blairstone Road

Suite 439

Tallahassee, FL 32399-2500

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, FL 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: 92-001887RX

Orders for Case No: 92-001887RX