JOHN J. FARRELL, DOUGLAS ADAMS. ) WAYNE DURHAM, AND GARY PICCIRILLO, )
vs. ) CASE NO. 83-1507RX
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a final hearing in this cause on August 11, 1983, at Union Correctional Institution, Raiford, Florida.
For Petitioners: John J. Farrell, Douglas
For Respondent: William H. Ravenell, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301
By petition filed with the Division of Administrative Hearings, and later clarified by stipulation entered into at the final hearing in this cause and in the submission of proposed findings of fact and conclusions of law, Petitioners challenged the validity of Respondent's Rules 33-6.09(4)(d)2, 33-9.02(1), 33- 9.04, 33-9.07(4), 33-9.062(2), and 33-9.08(1), Florida Administrative Code.
Specifically, Petitioners contend that Rule 33-6.09(4)(d)2, Florida Administrative Code, is arbitrary and capricious, and unreasonably restricts the provisions of Section 945.091, Florida Statutes. Petitioners contend that the aforementioned sections of Chapter 33-9, Florida Administrative Code, is also contrary to the provisions of Section 945.091, Florida Statutes.
Also challenged by Petitioners in this proceeding are several policy and procedure directives issued by Respondent, which Petitioners claim are unpromulgated, and therefore invalid, "rules." Specifically, Petitioners challenge as unpromulgated rules Policy and Procedure Directive 4.07.22, Section XA and Section 16; 4.07.31, Section IIIC and G and V Work-Study for Study Releasees, Section C; 4.07.40, Section IXB; 4.07.90, Section IV; and 4.07.42, Section VIIB 2 and D 1(c).
Final hearing in this cause was scheduled for August 11, 1983, by Amended Notice of Hearing dated July 15, 1983. At the final hearing each of the Petitioners testified in his own behalf, and called Wallace Cason, J. J. Crews, Kenneth Snow, A. J. Boles, Julian Avias, Vernon Fox, Harold Skee, John Johnson, James W. Dunn, Roy Alderman, Jim Reddish, and T J. Cunningham as their witnesses. Petitioners offered Petitioners' Exhibits 2, 3, 5, 6, 7, 9 through 15, and 17, which were received into evidence. Respondent called Robert H. Porter as its only witness, 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.
At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984.
It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections.
On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows:
It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report.
The following source of information should be utilized by the Classification Team in compiling information for the report.
Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education,
recreation, quarters, religious, per- sonal observations, etc
Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress.
The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows:
The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is
felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress
Report setting forth the basis for recommending a change in the PPRD.
If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed
and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval.
The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format.
Upon approving a parole or pre-parole work release recommendation, the Superintendent
will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission.
The above-quoted language from Section XVI of Policy and Procedure Directive No.
4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code.
On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection":
C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable.
The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program.
The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action.
Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing:
Vocational Rehabilitation
Veterans benefits
Personal finances
Committed support by the inmate's family
Approval for a government grant
Proof of financial support must accompany each application.
Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education.
Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained.
On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows:
The Department will permit consideration
for work release 18 months prior to release.
However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or
expiration or[sic] sentence. Should special cases arise which warrant attention prior
to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added)
The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code.
On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows:
The following distance limitations are established as maximums but may be reduced by the Superintendent:
Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way.
Travel for fund raising projects will be limited to 35 miles one way.
Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations.
Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear.
On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
CONCLUSIONS OF LAW
The Divison of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.56, Florida Statutes.
Section 945.01, Florida Statutes, provides as follows:
The Department of Corrections shall adopt regulations for the classifica- tion of all offenders according to age, sex, and such other factors as it may deem advisable and shall provide
for the separation of prisoners by sex.
Section 945.091, Florida Statutes, provides, in pertinent part, as follows:
The department is authorized to adopt regulations permitting the extension of the limits of the place of the confinement of an inmate as to whom there is reasonable cause to believe he will honor his trust by
authorizing him, under prescribed con- ditions and following investigation and approval by the secretary, who shall maintain a written record of such action, to leave the confines of that place unaccompanied by custodial agent for a prescribed period of time to:
Visit, for specified period, a specifically designated place or places:
For the purpose of visiting
a dying relative, attending the funeral of a relative, or arranging for employ- ment or a suitable residence for use when released;
To otherwise aid in the rehabili- tation of the inmates; or
For another compelling reason con- sistent with the public interest,
and return to the same or another insti- tution or facility designated by the Department of Corrections; or
Work at paid employment, participate in an education or a training program,
or voluntarily serve a public or nonprofit agency in the community, while continuing as an inmate of the institution or facility in which he is confined, except during the hours of his employment, education, train- ing, or service and traveling thereto and there from. Inmates may participate in paid employment only during the last
18 months of their confinement, unless sooner requested of the Parole and Probation Commission.
(3) The department may adopt regu- lations as to the eligibility of inmates for the extension of confinement.
Section 945.21(1) , Florida Statutes, authorizes the Department of Corrections to promulgate such regulations governing the administration of the correctional system and the operation of the department ". . . as in the opinion of the department may be necessary for the efficient operation and management of the correctional system."
Rule 33-6.09(4)(d)2, Florida Administrative Code, provides as follows:
The custody grade resulting from
an inmate's questionnaire score may be modified if specific facts indicate that the questionnaire score does not adequately
reflect the inmate's need for custody super- vision. The specific reason for any modi- fication shall be shown on the report of inmate classification. In addition to the reasons listed on the form, reasons for increasing or decreasing the custody grade might, in appropriate cases, include one
of the following comments with proper explanation:
Primary offense reduced as a result of plea bargaining.
Other active/inactive commitments.
Victim sex relative to offender sex.
Victim handicapped.
Age of victim.
Public pressure (i.e., judge's or prosecutor's recommendation, victim/victim family interest, legislative inquiry, law enforcement interest, executive inquiry, personal notoriety, case notoriety, etc.
Prior adult criminal record.
Prior juvenile criminal record.
Community supervision record.
Military record.
Status prior to sentencing (i.e., high bond, bond forfeiture, etc.).
Offender age.
Employment prior to arrest (chroni- cally unemployed, etc.).
Inmate is taking prescribed medi- cation of a mind altering nature.
Family environment (no family ties, family crime, head of family, deser-
tion, family transients, etc.)
Class felony.
Charge reduced as result of plea bargaining.
Counts dropped as a result of plea bargaining.
Others, as appropriate.
Rule 33-9.02(1), Florida Administrative Code, provides as follows:
The Department may allow selected inmates to leave the principal places of their
confinement for a period of time unaccompanied by custodial agent, by authorizing the place ment of these inmates in community release programs or by granting furloughs under the conditions specified herein.
Rule 33-9.04, Florida Administrative Code, entitled "Community Release," provides as follows:
Selected inmates may be authorized to participate in community work release, community study release, or community volunteer service programs while continu- ing as inmates of the institution in which they shall be confined except during the hours of their employment, education, training, or service in traveling thereto or there from. The Community Release Program should attempt to place the
inmate in or near the community where the inmate plans to reside upon release.
Rule 33-9.07(4), Florida Administrative Code, entitled "Selection for Work Release," provides as follows:
The Department may recommend to the Florida Parole and Probation Commission that an inmate be placed on pre-parole work release prior to the last 12 months of his sentence. If the Florida Parole and Probation Commission Hearing Examiner recommends participation in the program and the Commission does not deny the recommendation within thirty days of the time of receipt of the report, the inmate may be placed in the program and the Department shall advise the Commission
of the fact prior to-such placement.
Rule 33-9.06(2), Florida Administrative Code, entitled "Eligibility for Extended Limits," provides as follows:
Inmates must meet the following basic eligi- bility requirements before being approved for community release or furlough:
(2) No inmate shall be eligible for participation in the community release
or furlough programs unless he is classi- fied as minimum custody.
Rule 33-9.08, Florida Administrative Code, entitled "Approval of Extended Limits," provides, in pertinent part, as follows:
(1) An extension of the limits of
an inmate's confinement pursuant to this Chapter may be granted only after an initial recommendation by the inmate's Classification Team, the approval of the Superintendent, and final approval by the Administrator, provided that the Administrator shall refer certain cases
to a special review board as provided below
Where, as here, the legislature has delegated board discretionary rulemaking authority to an agency, ". . . the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious.
. . ." Florida Beverage Corporation v. Wynne 306 So.2d 200, 202 (Fla. 1st DCA 1974); General Telephone Company of Florida v. Florida Public Service Commission, 6 FALR 1016, 1019 (Fla. 1984). Further, where an agency has responded to rulemaking incentives and has adopted as rules its policy statement of general applicability, ". . . [p]ermissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views. . . ." Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981). In light of the broad rulemaking authority granted to Respondent by the legislature, as hereinabove set forth, and further in light of the absence from this record of any evidence upon which it could be concluded that the challenged rules are either arbitrary or capricious, it is specifically concluded as a matter of law that these rules constitute permissible interpretations of Respondent's enabling legislation, and that the Petitioners
have failed to establish any grounds for a holding of invalidity of any of those rules.
Section 120.52(15), Florida Statutes, defines the term "rule" to mean:
. . . .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 existing rule
. . . .
Agency statements which meet the definition of a "rule" within the meaning of Section 120.52(15), 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). Agency statements which purport in and of themselves to create rights that adversely affect others, and which are applied prospectively with the force and effect of law, allowing little or no discretion in their implementation, are rules that are void unless formally adopted. Florida State University v. Dann,
400 So.2d 1304 (Fla. 1st DCA 1981). 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(15)], F.S., shall be promulgated as a rule of the Department, unless specifically exempted by Florida Statutes."
It is specifically concluded, as a matter of law, that Section XA, Policy and Procedure Directive 4.07.22, Section IIIC and G and Section V, Work- Study for Study Releasees, and Policy and Procedure Directive 4.07.31, Section IXB, Policy and Procedure Directive 4.07.40, Section IV, Policy and Procedure Directive 4.07.90, and the entirety of Policy and Procedure Directive 4.07.42 constitute "rules" within the meaning of Section 120.52(15), Florida Statutes, and are therefore invalid for Respondent's failure to comply with the requirements of Section 120.54, Florida Statutes. See, Department of Corrections v. Sumner, Case Number AM-256 (Fla. 1st DCA March 22, 1984); Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43 (Fla. 1st DCA 1984).
DONE and ENTERED this 20th day of April, 1984, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1984.
John J. Farrell Douglas Adams Wayne Durham
Gary M. Piccirillo
William H. Ravenell, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301
Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard
Louie L. Wainwright, Secretary Department of Corrections
