JOHN P. WALSH, )
vs. ) CASE NO. 76-1185RX
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the
Division of Administrative Hearings, at 1:00 P.M. on September 30, 1976, in Room 103, Collins Building, Tallahassee, Florida
For Petitioner: Mr. Jerry G. Traynham
For Respondent: Mr. Raymond W. Gearey
By an "amended petition for administrative determination" filed pursuant to F.S. s.120.56, as amended, petitioner challenges the validity of an administrative directive relating to hair styles and facial appearance for male employees of the respondent Department of Offender Rehabilitation. Petitioner alleges that said directive is a rule within the meaning of the new Administrative Procedure Act (APA), that he has been substantially affected by said directive and that the directive constitutes an invalid exercise of delegated legislative authority. As grounds for the latter assertion, petitioner alleges that the directive was not properly adopted as required by Chapter 120 of the Florida Statutes and that there is no rational connection between the directive and any lawful State purpose.
In contrast, respondent contends that directive number 19 is not a "rule" within the meaning of the APA, and is thus not properly reviewable under
F.S. s.120.56. In the alternative, respondent argues that the directive is a valid exercise of delegated legislative authority and that the matter is now moot due to F.S. s.20.315(16) which provides that all rules of the respondent
carried over from its predecessor agency, the Division of Corrections, expire on October 1, 1976.
In an action filed pursuant to F.S. s.120.56, as amended, there are four issues for consideration. First, is the petitioner substantially affected by the challenged rule? Second, is the rule which is under attack -- whether it be labeled a rule, directive, memorandum, policy statement or whatever -- a "rule" within the meaning of the APA? Third, if it is a rule, has it been properly adopted or promulgated as required by Chapter 120? And finally, is it otherwise a valid exercise of delegated legislative authority?
The evidence adduced at the hearing clearly demonstrates that petitioner has been substantially affected by the directive in question. Some sixteen months prior to June of 1976, petitioner was employed as a Statistician I with the Parole and Probation Commission. His primary duties concerned the compilation and analyzation of statistical data. As a result of reorganization, on or about June 8, 1976, he was transferred to the Bureau of Planning, Research and Statistics of the Department of Offender Rehabilitation. It was his understanding that his job functions would remain substantially similar and that the only difference would be that the statistics he would be working with would relate to inmates rather than parolees. Shortly after he began his employment with the Department of Offender Rehabilitation, petitioner was informed that if he did not shave his beard, he would not be promoted to a Statistician II and would, in fact, be terminated from employment. Petitioner was advised by Robert Roesch, Acting Chief of the Bureau, that he was in violation of departmental directive No. 19 relating to hair styles and was, on June 22, 1976, directed to comply with said directive by 8:00 a.m. on June 24, 1976. Having failed to comply with the directive, petitioner was terminated from employment with respondent as of the end of the working day of July 8, 1976. Under these facts, the conclusion is inescapable that petitioner has been substantially affected by the directive in question.
The next question to be considered is whether the directive falls within the definition of a "rule" as contained in Chapter 120, F.S. The directive in question, received into evidence without objection as Exhibit 1, reads in its entirety as follows:
"FLORIDA DIVISION OF CORRECTIONS - ADMINISTRATIVE DIRECTIVE
Directive Number 19
EMPLOYEE HAIRSTYLES Date Issues: 1/1/73
19.01 - Employee Hairstyles
Section 10B-2.03(2) of the Administrative Rules and Regulations provides:
"Each employee shall keep himself physically fit, mentally alert, personally neat and clean, and shall perform his duties fairly and impartially, and otherwise conduct himself both on duty and off-duty so as to command the respect of inmates, fellow employees, and the general public.
In furtherance of the above rule, male employees will be allowed to select their hairstyles within the following guidelines:
Hair, including sideburns, will be clean and
combed, cut short or medium length, and neatly trimmed at all times with no part of the ear or collar covered. Sideburns shall not extend beyond the bottom of the earlobes and will
have straight lines with no flare at the base. The face will be clean-shaven except that a neatly trimmed moustache may be worn but shall not hang over the mouth or extend beyond the corners of the mouth.
The foregoing guidelines are felt to be sufficiently broad to permit a range of individual expression and taste while still meeting the demands of our agency operation as outlined in the Administrative Rules.
An employee's failure to conduct himself within these guidelines will be reflected on his Service Rating and/or incur appropriate disciplinary action.
As noted above, it is the respondent's contention that this directive is merely an "order" or an "internal management memorandum" and cannot be considered as a "rule" within the meaning of Chapter 120, F.S. The undersigned Hearing Officer cannot accept this contention and concludes that the directive in question constitutes a "rule" within the meaning of the APA.
An agency cannot avoid the requirements of applicable statutes by utilizing a nomenclature other than "rule" to describe agency statements which have the effect of rules. The Legislature has provided us with definitions of various terms which are or are not subject to the APA. Section 120.52, F.S., provides in pertinent part as follows:
"120.52 Definitions. -- As used in this act:
* * *
(9) "Order" means a final agency decision which does not have the effect of a rule and which is not excepted from the definition of a rule, whether affirmative, negative, injunctive, or declaratory in form. An agency decision shall be final when reduced to writing.
* * *
(14) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include
(a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum."
The directive in question, on its face, applies generally to all male employees of the Department, it interprets or prescribes policy and it describes the
practice requirements of the agency. Therefore, it is a rule, rather than an order, unless excluded from the definition of a rule by s. 120.52(14). The only exclusions relevant to this discussion are those documents referred to as "internal management memoranda" defined in s. 120.52(14)(a), as set forth above.
Respondent argues that the directive in question falls within the definition of an internal management memorandum since it has no application outside the agency, is not a plan or procedure important to the public and since whatever private interest is involved is subordinate to the governmental interests or needs of the employing agency. Since the regulation in issue affects an employee both within and without the actual hours of his employment, it is doubtful that it could be considered to have no application outside the agency or be a procedure unimportant to the public. But, even if the contrary conclusion were to be drawn, it certainly cannot be said that the directive does not affect the employee's private right or interest of expression. Whether or not that right is subordinate to the public needs of the agency may be determinative of the directive's validity or its constitutionality, but it is not dispositive of the categorization of the directive as a rule or as an internal management memoranda. The directive clearly affecting the private interests of those to whom it is made applicable, it does not fall within the definition of internal management memoranda and is therefore a rule within the meaning of F.S. s. 120.52(14).
Petitioner contends that the directive relating to hair styles is an invalid exercise of delegated legislative authority because it was not properly adopted and because it bears no reasonable or rational relationship to the purpose of the governing statute or the purposes of the Department. The majority of the evidence adduced at the hearing was related to this latter contention.
It is a well established principle of administrative law that a rule or regulation, otherwise properly adopted, must be reasonably related to the purpose of the enabling legislation and must not be arbitrary or capricious. An administrative body may not use the device of promulgating rules to impose requirements stricter than those imposed by statute or to enlarge the policy or extend the operative effect of the governing statute.
By F.S. s. 945.21(1)(e) & (m), the Legislature gave the respondent the authority to adopt rules and regulations relating to rules of conduct of custodial and other personnel as well as other regulations necessary for the efficient operation and management of the correctional system. Also see F.S. s.
944.09. Citing these statutes as authority, respondent's predecessor, the Division of Corrections, adopted Rule 10B-13.02(4), formerly numbered 10B- 2.03(2), reading as set forth earlier in this opinion. Then, in furtherance of this rule, the guidelines for hair styles were set forth in Directive No. 19. The respondent's own rules purport to authorize respondent to adopt directives which are defined as "written memoranda which supplement the Rules and Regulations but which are no more restrictive than the rule or regulation supplemented." F.A.C. Rule 10B-10.01(13). Thus, even assuming that the directive in question were something other than a "rule" within the meaning of the APA, it appears to violate respondent's own rule defining "directives." The directive setting guidelines for hair lengths and proscribing facial hair excepting trimmed moustaches is certainly more restrictive than the rule mandating an employee to keep himself "physically fit, mentally alert [and] personally neat ant clean."
The testimony in support of the directive was to the effect that its purpose is to promote the proper and efficient management of the State's correctional system in that it promotes security. Reasons of safety, quick and positive identification between employees, inmates and visitors, morale among employees, public appearance and setting an example for inmates were also cited.
Even assuming these reasons to be valid, petitioner argues that they provide no rational cause or relationship for professional or administrative employees who work at the central office in Tallahassee. The undersigned concludes that there was sufficient evidence adduced at the hearing to demonstrate that such employees will sometimes be dispatched to the various correctional institutions for tasks pertaining to their job functions. Thus, such an employee may occasionally be placed in direct contact with inmates and be required to assume the function of a law enforcement officer, as designated by Rule 10B-13.01(1), F.A.C. Therefore, a valid rule applicable to those who continuously work within the correctional institutions could validly extend to all others who are subject to performing tasks therein.
We are thus left with the issue of whether a requirement of short hair and clean-shaven faces for respondent's male employees promotes the goals of safety, identification, morale, public appearance and setting of examples for prisoners. If the rule does not bear a reasonable relationship to these purposes, it is arbitrary and capricious and thus not within the authority conferred by the legislature to make valid rules and regulations.
In support of the rationale of safety, the respondent's witness spoke of the dangers of longer hair and beards in the food and industrial areas of the prison setting, and opined that longer hair and beards provide an extra and dangerous "handhold" in the event of a scuffle between an inmate and an employee. This rationale fails when one considers that the directive is applicable only to men, that bulk and length of hair on top of the head is not regulated, and that there is apparently no such requirement for women who are either employed within the institutions or who may occasionally be sent there to perform specific tasks. Nor was it shown why a beard would provide any more of a "handhold" than the hair on top of the head.
Along with the stated goal of safety, respondent cited the need, during crisis situations, to quickly identify employees and to be able to differentiate between employees, inmates and visitors. A minimal degree of scrutiny of this rationale illustrates a lack of connection between the rule and its stated purpose. There was testimony at the hearing that male prisoners are not permitted to wear beards or mustaches. Under the challenged rule, male employees of the Department are permitted to wear trimmed mustaches but are not permitted to wear beards. Thus, if identification were truly the justification for the rule, it would be more appropriate to require all male employees to wear mustaches or beards so that they would be readily identifiable from the clean- shaven inmates. The justification that the challenged regulation aids in the identification and differentiation of prison visitors from prison inmates and employees (and thus protects the safety of the visitors should be a riot, uprising, or mass escape occur) irrationally assumes that all visitors sport beards. How is the goal of identification achieved when the inmate does not have a beard, the employee does not have a beard and the visitor does not have a beard? Further, if the rationale for the regulation is identification of facial features, this also fails. There was no showing that the person who happens to be in charge during a given crisis situation would be knowledgeable or aware of the facial characteristics of each inmate, employee or visitor involved. And, if he were so aware, he would be equally able to identify a bearded individual
as a clean-shaven one. Nor was there any evidence that instant identification between two or more persons wearing a beard would be any more difficult than rapid identification between two or more persons bearing similar facial characteristics. Additionally, there was testimony from an employee of the federal correctional system for some fifteen years that there were no rules against employees wearing beards in the federal system and that the existence of beards on employees presented no security or identification problems. In short, there are less intrusive means of achieving the goal of rapid identity -- for example, through the use of uniforms, badges, agreed upon signals, proper screening, etc. While the goal of rapid identification in a prison setting is a valid one, it is concluded that there is no rational relationship between this goal and the challenged directive.
This, then, leaves the stated reasons of morale among employees, public appearance and setting an example for inmates. The undersigned Hearing Officer fails to understand how a regulation prescribing hair lengths or styles and proscribing facial hair bears any reasonable relationship to these stated goals. There was absolutely no evidence that short hair and clean shaven faces, with or without mustaches, fosters employee morale in a varied work force composed of persons with many different job functions, some of whom wear uniforms and some of whom do not. The fact that we are not here dealing solely with members of a uniformed police force distinguishes the instant case from Kelly v. Johnson, U.S. , 47 L.Ed 2d 708, 96 S. Ct. 1440 (1976). There was no evidence that the hair on one's face would have any effect in terms of his relationship with other employees. Indeed, in this day of rapid changes in styles and diversity of personal expression, it would appear to be contrary to the goal of employee morale to force employees into a grooming standard which they might not rationally accept. And, an unreasonable standard would certainly have an adverse effect on morale. Nor was there any evidence to the effect that the imposed grooming requirements of the directive would make the general public more receptive to or respectful of the respondent's male employees. While good behavioral conduct, personal neatness and cleanliness and mental altertness would certainly set a good example for inmates, or anyone else for that matter, it is difficult to comprehend how the existence of a beard, a flared sideburn or a mustache extending beyond the corners of the mouth could deter or lessen the example set.
In summary, it is found that the directive in question bears no rational or reasonable relationship to the offered goals of safety, identifiability, employee morale, public appearance or the setting of an example for inmates. As such, it is arbitrary and unreasonable and beyond the authority of the agency in the exercise of its rule-making functions. It is therefore found that the challenged directive relating to hairstyles for male employees of the Department of Offender Rehabilitation constitutes an invalid exercise of delegated legislative authority.
There is an additional, equally important reason for the invalidity of the directive. The only statutes enabling the promulgation of such a regulation are F.S. ss. 944.09 and 945.21. Each of these statutes authorize the promulgation of rules and regulations relating to personnel of the Department of Offender Rehabilitation. Each statute also provides that such regulations "shall be adopted and filed with the Department of State as provided in Chapter 120." F.S. ss. 944.09(3) and 945.21(2). This, of course, is also the requirement of the Administrative Procedures Act, whether the old or the new act is applied.
It is obvious that the challenged directive, which has previously been determined to be a rule within the meaning of the APA, has not been properly adopted and is therefore of no force and effect. First, it is apparent from the nomenclature attached to the regulation that the respondent, or its predecessor, did not consider it a rule subject to proper adoption procedures and requirements. Second, the research engaged in by this Hearing Officer reveals that the language of the challenged directive does not appear in the Florida Administrative Code as supplemented through July of 1976. 1/ Both the new and the old Administrative Procedure Acts require the agency to file with the Department of State a certified copy of each rule adopted by it, and both Acts require the Department of State to publish all rules adopted by each agency in the compilation entitled Florida Administrative Code.
It is to be noted that Directive No. 19 bears a "date issued" date of January 1, 1973. In the absence of evidence to the contrary, 2/ it must be presumed that the Department of State does perform its statutory duty of publication in the Florida Administrative Code when a certified copy of a rule is filed with it. Even if such a presumption were not indulged in, it would appear to be the duty of the adopting agency to take notice and remedy the fact that its filed rules are not published for a period in excess of three and one half years. It is concluded that the non-appearance of the language of the directive in the Florida Administrative Code, as supplemented through July of 1976, is evidence that it was not adopted according to the requirements of the APA, both old and new. As such, the rule constitutes an invalid exercise of delegated legislative authority.
Finally, respondent contends that the question of the directive's validity became moot on October 1, 1976, by operation of F.S. s. 20.315(16). Said section provides that respondent shall develop and publish new rules in such time as to take effect by October 1, 1976, and that all prior rules in effect or filed prior to July 1, 1975, transferred to respondent are repealed on October 1, 1976. In the first place, the undersigned concludes that said section obviously applies only to the repeal of valid rules and thus is not applicable to the directive challenged herein. Second, even if s. 20.315(16) were applicable to Directive No. 19, it is concluded that petitioner, under the facts of this case, is entitled to a determination of the directive's validity. It is recognized that normally the law as it exists at the time of review will be applied to a pending case. However, petitioner originally filed his rule challenge petition in June of 1976, the hearing was held on September 30, 1976 and petitioner's subsequent rights and status may be affected by the validity of the directive in question. For a similar ruling by the District Court of Appeal, First District, see State of Florida, Department of Transportation v. Pan American Construction Co., et., et al., So. 2d (Case No. CC-389, Op. filed October 18, 1976.
In summary, it is concluded that the challenged directive is a rule within the meaning of the Administrative Procedure Act, that petitioner has been substantially affected by the rule, and that the issue is not now moot. It is further concluded that the rule constitutes an invalid exercise of delegated legislative authority in that it was not properly adopted pursuant to the APA, whether old or new, and it bears no reasonable or rational relationship to the purposes of the enabling legislation.
Done and entered this 29th day of October, 1976, in Tallahassee, Florida.
DIANE D. TREMOR
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
1/ On October 14, 1976, the Hearing Officer, pursuant to F.S. s. 120.61, issued to the parties notice of her intention to take official notice of the fact that the directive in question did not appear in the Florida Administrative Code.
The parties were given the opportunity to, within seven days, explain or refute this noticed fact. On October 21, 1976, respondent filed its "memorandum opposing official recognition of non-existence of rule."
It must first be noted that the official notice taken was of the fact of the directive's nonappearance in the Code, and was not of its nonexistence as a rule. Just as the courts are entitled to judicially notice the existence and the nonexistence of a statute as well as factual matters bearing on the validity of a statute, so many an administrative body having jurisdiction to determine the validity of rules officially notice the publication or nonpublication of the rule when such bears on its validity.
2/ As noted in footnote 1, the respondent filed a memorandum in opposition to the taking of official notice of the fact of the directive's nonappearance in the Code. However, no where in said memorandum did respondent assert that the rule was either published in the Code or filed with the Department of State.
Mr. Jerry G. Traynham Patterson and Black 1215 Thomasville Road
Mr. Raymond W. Gearey
================================================================= DISTRICT COURT OPINION
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JULY TERM, A. D. 1977
FLORIDA DEPARTMENT OF NOT FINAL UNTIL TIME EXPIRES OFFENDER REHABILITATION, TO FILE REHEARING PETITION AND
DISPOSITION THEREOF IF FILED.
CASE NO. EE-93
vs. DOAH CASE NO. 76-1185RX
JOHN P. WALSH,
/ Opinion filed December 2, 1977.
A Petition for Review of Order of Florida Division of Administrative Hearings - Original Jurisdiction.
Raymond W. Gearey, for Petitioner.
Jerry G. Traynham of Patterson & Black; and Diane D. Tremor, for Respondent.
PER CURIAM. Petitioner seeks reversal of the final order of the Florida Division of Administrative Hearings of October 29, 1976, that held petitioner's Administrative Directive Number 19 to be a rule within the purview of Section 120.52(14), Florida Statutes (1975). The provisions of the directive come within the operation of Section 120.52, Florida Statutes. It was not adopted as a rule as required, and is therefore void. The constitutional measurement or applications of the directive is not properly before the court.
The petition is denied.
SMITH, Acting Chief Judge, ERVIN & MELVIN, JJ., CONCUR.
