STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, DOUGLAS L. ) ADAMS and BRUCE MARTIN, )

)

Petitioners, )

)

vs. ) CASE NO. 83-1498RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on June 17, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioners: Gary M. piccirillo and

Douglas L. Adams, pro se

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: William H. Ravenell, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Robert A. Leeper, Esquire 1810 Tamiami Drive

Tallahassee, Florida 32301

Petitioners, who at the time of the formal hearing in this proceeding were inmates incarcerated at Union Correctional Institution, challenge as invalid "rules" Department of Corrections Policy and procedure Directive No. 4.10.51 concerning the use of institutional law libraries, and Union Correctional Institution Interoffice Memorandum dated May 4, 1983.

Final hearing in this cause was scheduled for June 17, 1983, by notice of hearing dated May 24, 1983. At the final hearing, Petitioners testified in their own behalf and offered Petitioner's Exhibits 1 through 4, which were received into evidence.

Respondent called Benjamin Harris, Donald Jackson, and Todd Jordan as its witnesses and offered no exhibits for inclusion in the record.

Both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this order, they have been specifically rejected as being either irrelevant to the issues in this cause or as not having been supported by evidence of record.

FINDINGS OF FACT

1. At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Petitioners are actively involved in numerous litigated matters before both state agencies and the courts. As such, they frequently use the law library at Union Correctional Institution.

   
   

2. On or about May 17, 1983, the Secretary of the Department of Corrections issued a revision to Policy and Procedures Directive 4.10.51, which had originally been issued on June 21, 1979. This document, which has not been formally adopted as a "rule," purports to be issued pursuant to the authority contained in Section 945.21, Florida Statutes, and Rule 33-3.05, Florida Administrative Code. This directive applies statewide to the maintenance and operation of law libraries located within the facilities operated by the Department of Corrections. The directive establishes the location of "major" and "minor" law libraries in various correctional facilities. In addition, it defines certain terms and lists the types of legal materials to be maintained in "major" and "minor" libraries. The document establishes duties and responsibilities of the superintendent of each correctional facility maintaining a law library, as well as establishing the duties of the law librarian, inmate law clerks, inmate typists, the coordinator of law libraries, and inmates utilizing the facilities. The directive specifies the types of equipment to be maintained in the facilities and establishes guidelines concerning duplication of library materials by inmates. The directive further establishes the permissible scope of activities by law clerks in assisting inmates with legal research, and further reestablishes control on the use of telephone communications by inmates in connection with pending legal matters. Finally, the directive establishes a Law Library Advisory Council, provides for composition of the membership of that council, and empowers the council to make recommendations to the Secretary of the Department of Corrections concerning library services.

   
   

3. On May 4, 1983, Union Correctional Institution, without formal rulemaking proceedings, issued the following Interoffice Memorandum addressed to the Main Housing Unit Staff and Inmates, concerning the law library at Union Correctional Institution:

   
   

   Effective inmediately, all Main Housing Unit Inmates wishing to use the Law Library, will obtain a Pass (Call-out) from their Floor Officer. The Floor Officermay let three (3) Inmates off his floor, go to the Law Library, no more. As

   these Inmates return, other Inmates may obtain a Pass to the Law Library. The Inmates will be limited to more than a two (2) hour stay in the Law Library, on each Pass. This should give everyone reasonable access to the Law Library.

   At 4:00 P.M., Officers will cease writing Passes to the Law Library Inmates wishing to use the Law Library after 4:00 P.M., must place their names on

   a list prepared at the Main Housing Unit Office. At 6:00 P.M., these inmates will be escorted to the Law Library by an Officer. At approximately 8:00 P.M., or when the Law Library closes, the Inmates will he escorted back to the Main Housing Unit by an Officer. The only exception to the above procedures, will be inmates who provide evidence of a deadline on their case or other legal materials.

   
   

   Any Inmate who checks out to the Law Library and is found in another area of the Institution, will be subject to Disciplinary Action.

   
   

   These procedures also apply to weekends and Holidays. This Memorandum becomes Institutional Policy, and compliance is expected.

   
   

4. At the time of final hearing in this cause, there were approximately 2,600 inmates located in Union Correctional Institution. The seating capacity of the UCI law library is approximate1y thirty inmates, and the library is often crowded.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has juris-diction over the subject matter of, and the parties to, this proceeding. Further, Petitioners are "substantially affected" persons, thereby affording them standing to maintain this cause. Section 120.56, Florida Statutes.

6. Section 120.52(14), Florida Statutes, defines the term "rule" to mean: (15)...each agency statement of general

   applicability that implements, inter-

   prets, 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 infor- mation not specifically required by statute or by an existing rule....

   
   

   Agency statements which meet the definition of a "rule" within the meaning of Section 120.52(14), Florida Statutes, but have not been adopted according to the rulemaking requirements of Section 120.54, Florida Statutes, are invalid.

   Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). If these statements purport in and of themselves to create rights and adversely affect others, and if they are applied prospectively with the force and effect of law, allowing little or no discretion in their implementation, they are rules and void unless formally adopted. Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981)

   
   

7. Respondent purportedly issued the Policy and Procedure Directive and the Interoffice Memorandum pursuant to authority contained in Section 945.21, Florida Statutes, and Rule 33-3.05, Florida Administrative Code. Section 945.21, Florida Statutes, provides, in pertinent part, as follows:

   1. The department is authorized to adopt and promulgate regulations governing the administration of the correctional system and the operation of the department. In addition to specific subjects otherwise provided for herein, regulations of the depart- ment may relate to:

      1. Conduct to be observed by prisoners.

         (j) Mail to and from inmates.

         (m) Such other regulations as

         in the opinion of the department may be necessary for the efficient opera-

         tion and management of the correctional system.

   2. Regulations of the department shall be adopted and filed with the Department of State as provided in chapter 120.

      
      

8. Rule 33-3.05, Florida Administrative Code, provides, in pertinent part, as follows:

   
   

   1. All inmates shall have a right of unhindered access to the courts. Inmates shall be given ample time in which to prepare petitions and other legal documents. These documents will be processed promptly subject to the procedures outlined in this rule.

      1. Inmates may be allowed to prepare legal documents and legal mail in

         their living quarters. Additionally, some institutions may designate other areas specifically for this purpose.

      2. Preparation of legal documents and legal mail shall only be permitted during inmates off-duty time. If a separate area is designated, it must be available for use a reasonable number of hours each week and inmates shall be allowed to go to such place during scheduled periods as soon as practicable after receipt of their request to do so.

      1. Each Superintendent shall issue an institutional policy memorandum to effectuate the provisions of this rule which will cover the following outline:

         1. The location or locations designated where legal documents and mail may be prepared and times avail- able for use of these areas.

      
      

9. Rule 33-1.07(1), Florida Administrative Code, authorizes the Secretary of the Department of Corrections to "...issue Policy and Procedure Directives

   applicable to operations throughout the Department." However, Rule 33-1.07(4), Florida Administrative Code, provides that any such Policy and Procedure Directives that meet "...the definition of a `rule' contained in Section 120.52(14), F.S., shall be promulgated as a rule of the Department, unless specifically exempted by Florida Statute."

   
   

10. The parties to this proceeding have stipulated that the challenged Policy and Procedure Directive and the Interoffice Memorandum were not promulgated as rules pursuant to the requirements of Section 120.54, Florida Statutes. It is clear that the challenged Policy and Procedure Directive and the Interoffice Memorandum constitute agency statements of general applicability that implement policy. Further, these documents contain much more explicit provisions concerning the operation of law libraries at Department of Corrections facilities than is contained in either Section 945.21, Florida Statutes, or Rule 33-3.05, Florida Administrative Code. Since the facts in this case are indistinguishable from those contained in Department of Corrections v. Sumner, Case No. AM-256 (Fla. 1st DCA March 22, 1984), wherein an interoffice memorandum and a department Policy and Procedure Directive were declared to be invalid rules, it is

ORDERED:

That Policy and Procedure Directive 4.10.51, as revised May 17, 1983, and Union Correctional Institution Interoffice Memorandum dated May 4, 1983, constitute "rules" within the meaning of Section 120.52(14), Florida Statutes, which were not properly adopted, and are, therefore, declared to be invalid exercises of delegated legislative authority.

DONE AND ENTERED this 5th day of April, 1984, at Tallahassee, Florida.

WILLIAM E WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1984.

COPIES FURNISHED:

Douglas L. Adams Bruce Martin

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Gary M. Piccirillo Lake City Community Correctional Inst. Post Office Box 777

Lake City, Florida 32055

William H. Ravenell, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Robert A. Leeper, Esquire 1810 Tamiami Drive

Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures

Committee

Room 120, Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Room 1802 Tallahassee, Florida 32301

Docket for Case No: 83-001498RX

Orders for Case No: 83-001498RX