STEVEN BERNARD RIDLEY a/k/a ) HASSAN ABDULLAH FAREED, ) DOUGLAS ADAMS, CLAUDE SIMMONS, ) JOSEPH REDMAN, and JOE LEWIS ) HOLLAND, )
vs. ) CASE NO. 83-2047RX
Respondent. )
Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on August 1, 1983, at Union Correctional Institution, Raiford, Florida.
For Respondent: John J. Rimes, III, Esquire
Whether the Florida Department of Corrections' Rule 33-3.02(6), Florida Administrative Code, Policy and Procedure Directive 4.07.04 and Union Correctional Institution Policy Memoranda Nos. 81-12, 82-68, and 82-69, constitute invalid exercises of delegated legislative authority.
By Petition for Administrative Determination filed on June 29, 1983, petitioners Steven Bernard Ridley a/k/a Hassan Abdullah Fareed, Douglas Adams, Claude Simmons, Joseph Redman, and Joe Lewis Holland, seek to invalidate
respondent Department of Corrections' ("Department") Rule 33-3.02(6), Policy and Procedure Directive ("PPD") 4.07.04 and Union Correctional Institution Policy Memoranda ("UCIPM") 81-12, ,82-68, and 82-69.
Hearing was set for August 1, 1983. Pursuant to Rule 28-5.1055, Florida Administrative Code, Gary M. Piccirillo was qualified to represent all petitioners, except for Joseph Redman, who represented himself. At hearing, petitioners presented the testimony of Douglas Adams, James Reddish, Steven Ridley, Joseph Redman, Joe Lewis Holland, Curtis Woodall, and Delmus Stone.
Petitioners' Exhibit Nos. 1-8 1/ were received into evidence. The Department did not attend the hearing, choosing, instead, to file a prehearing Response and Memorandum of Law. Thus the Department presented no evidence, whatsoever, in defense of its challenged rule, directive, and memoranda.
Post-hearing proposed findings of fact and conclusions of law were filed by September 14, 1983. Petitioners agreed that the Final Order would not be due until 30 days after their post-hearing filings.
FINDINGS OF FACT I.
Prior to and at the time of hearing, petitioners were substantially affected by the challenged Department rule, directive and memoranda, which establish and implement the Department's requirements that prisoners be clean shaven and their hair be cut properly. Petitioners are subject to both requirements. Prior to January, 1983, each had applied for and received no- shaving passes or exceptions to the clean shaven requirement. Now, however, under the challenged rule, directive and memoranda, further exceptions have been denied them.
II.
Rule 33-3.02(6), Florida Administrative Code
Department Rule 33-3.02 provides, in part: Care of Inmates
* * *
(6) . . . Inmates shall be required to have their hair cut properly, within good taste, and they must be clean shaven.
Sections 944.09 and 945.21, Florida Statutes, cited as the specific statutory authority for this rule, authorize the Department to adopt rules governing the administration of the correctional system, including rules of conduct for inmates.
The challenged rule prescribing clean shaven facial hair pertains to the Department's administration of the correctional system, and specifies a rule of conduct for inmates, thus falling within the statutory grant.
Petitioners do not argue that the Department lacks authority to regulate the length of inmates' facial hair. Rather, they urge that the rule is invalid because it is all-inclusive and fails to allow exceptions to the clean shaven requirement for medical or religious reasons.
There is a minor cutaneous disease, known as pseudofolliculitis barbae. [It is] caused by curved hairs
that, when sharpened by shaving,
either penetrate the epidermis
in an arc through stratum corneum (reentry penetration) or pierce follicular wall (transfollicular penetration) and . . . elicit
a foreign body reaction. (P-5)
This disease inflicts blacks and is rarely found in whites. It may be accompanied by minor pain, with a few early traumatized papules and papulopustules, and blotchy pigmentation. Once diagnosed, it is essential that the facial hair be allowed to grow, unshaven, over a four to five week period, to a length of approximately one centimeter. This will relieve the symptoms but, upon resumption of shaving, the disease will, in all likelihood, reoccur. (P-5; Testimony of Stone, Holland, Redman, Ridley, Adams)
The Department admits that there may be medical reasons which require that an inmate be allowed to have facial hair in excess of what is permitted in the rule. (Department's Response and Memorandum of Law) The Department has also accepted a ruling by the U.S. District Court, Southern District of Florida, (Alexander Harvin v. Louie L. Wainwright, Case No. 82-69-Civ-SMA [attached to Department's Response]), that, upon a doctor's determination, an inmate will be permitted to grow facial hair. And, in actual practice, the Department has granted exceptions (as it did earlier with each petitioner) to the clean shaven rule for medical reasons. 2/ (Department Response)
Nonetheless, the challenged rule imposes a blanket requirement that all inmates be clean shaven and fails to allow exception for medical reasons. By so doing, it is arbitrary and capricious in that it lacks a reasonable basis and is unsupported by facts or logic.
The evidence is insufficient to establish, however, that the rule's failure to provide an exception for religious reasons is arbitrary or capricious.
III.
Policy and Procedure Directive 4.07.04
Department PPD 4.07.04, issued August 11, 1977, is entitled "Male Inmate Hairstyles", and applies throughout the state correctional system. It states:
Male inmates will be allowed to select their hairstyles within the following guidelines: Hair, including sideburns, will be clean and combed, cut short to 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. Each institution is encouraged to provide photographs or drawings of acceptable hairstyles.
The foregoing guidelines are felt to
be sufficiently broad to permit a range of additional expression and taste while still meeting the demands of our agency
operation as outlined in the Administrative Rules. An inmate's failure to conduct himself within these guidelines will result in disciplinary action.
The Department candidly states that the first paragraph of this directive specifies a department-wide policy on what type of hairstyles will be permitted in the various correctional institutions; "accepts the contention of Petitioners that said policy should be adopted as a rule"; (Department's Response, p. 5), and promises to initiate rulemaking as soon as possible. This is deemed an admission by the Department that this part of PPD 4.07.04 is an illicit rule.
But that part of the first paragraph which requires that inmates' faces be clean shaven is simply a restatement of the requirement already imposed by Rule 33-3.02(6). Assuming the continuing validity of that rule, the restatement would not, in and of itself, create rights, require compliance, or adversely affect the rights of others. However, since that portion of Rule 33- 3.02(6) is, by this order, invalidated, the corresponding requirement in PPD-
4.07.04 is a statement of general applicability which purports, in and of itself, to create rights of and adversely affect others; it allows subordinates no discretion in implementation and is virtually self-executing.
Paragraph two of the directive states that an inmate's failure to comply with these "guidelines" will result in disciplinary action. Such language lends support to the conclusion that the requirements of paragraph one are intended to be mandatory, and self-enforcing; and that compliance is required.
UCIPM 81-12
IV.
UCIPM 81-12, 82-68 and 82-69
Union Correctional Institution Policy Memorandum 81-12, entitled "Inmate Program Planning" and issued on April 20, 1970, is a broad policy statement describing institutional goals, staff responsibilities, and inmate program planning at Union Correctional Institution. It does not purport, in and of itself, to create rights or affect others. Neither does it require compliance or otherwise purport to have the direct and consistent effect of law. Its purpose is to define goals and assign program planning responsibilities to staff members at Union Correctional Institution.
UCIPM 82-68
UCIPM 82-68, entitled "Forced Shaving," was issued by the Superintendent of Union Correctional Institution on December 15, 1976. One of its stated purposes is to instruct staff on the procedure to be followed when an inmate refuses to comply with the "clean shaven" requirement. With the exception of one paragraph 82-68.2, it does not, in and of itself, purport to create rights or adversely affect others, require compliance, or otherwise have the direct and consistent effect of law. Moreover, it frequently commits the exercise of judgment and discretion to staff. (P-6)
For example, paragraph 82-68.3 requires staff members to follow these procedures when they observe an inmate out of compliance with the clean shaven requirement: (1) Advise inmate that he is not in compliance, instruct him to shave within a reasonable period of time, and advise him that his refusal will result in further staff action to insure compliance; (2) Upon his refusal to shave after counseling, initiate a disciplinary report; (3) If he is found guilty during disciplinary report procedures and still refuses to shave, notify the Superintendent or Assistant Superintendent. (P-6)
Paragraph 82-68.4 provides that, when notified of an inmate's refusal to shave, the Superintendent or Assistant Superintendent will: (1) Counsel the inmate and reasonably attempt to persuade him to follow instructions; (2) Confirm that he is not exempt for medical reasons; (3) Order the Correctional Officer Chief IV or Shift Lieutenant to use the minimum amount of force necessary to shave the inmate. (P-6) Paragraphs 82-68.5, 82-68.6, and 82-68.7 provide further detailed guidance in applying the minimum force necessary to carry out the shaving order. (P-6)
These paragraphs, which provide procedures for forced shaving, are nothing more than instructions to staff on applying minimal force against inmates in the context of a refusal to shave. Rule 33-3.066(1), entitled "Use of Force," already expressly authorizes the application of force to an inmate in an amount and type which reasonably appears necessary to accomplish the authorized objective.
Paragraph 82-68.2, however, expressly exempts one category of inmates from the forced shaving requirements--those who have received medical authorization because of a skin condition. This is a Department statement of general applicability--applying throughout Union Correctional Institution-- which prescribes policy and purports, in and of itself, to confer rights or affect the rights of others. It is unequivocal, self-executing, and allows no discretion in its implementation.
UCIPM 82-69
UCIPM 82-69, entitled "Administrative Confinement--Policy and Procedures" was issued by the Superintendent of Union Correctional Institution on September 13, 1982. Its stated purpose is to establish criteria, policy, and procedures for the placement of inmates in administrative confinement status. That portion of the memorandum relating to inmate shaving and haircuts is found in paragraphs 82-69.7 I. and J.:
82-69.7 Policies, Rules and Procedures applicable to all Inmates in Administrative Confinement
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Showering and Shaving: Each inmate in Administrative Confinement will
be required to shower and shave three times each week. The only exception will be in those instances
where, for treatment of acute medical problems, a doctor has authorized
an inmate in writing to not shower or shave for a specific period of time. Inmates exempted from shaving
by a doctor will be required to remove facial hair on a regular basis by close cutting with scissors or barber clippers.
J. Haircuts: Inmates in Administrative Confinement will be required to obtain haircuts as necessary to meet regulations of the Department.
Paragraph I., above, requires, in part, that inmates in administrative confinement shower and shave three times each week. This requirement is nothing more than a restatement of Rule 33-3.081(12)(b)1, Florida Administrative Code. It thus does not, in and of itself, confer rights, affect others, or require compliance. However, that part of paragraph I. which grants, an exemption to the showering and shaving requirement (for medical reasons) does prescribe policy and purports, in and of itself, to confer rights and affect others; it is self-executing, allows subordinates no discretion in implementation, and requires compliance.
Paragraph J., above, simply requires inmates in administrative confinement to obtain haircuts in compliance with the Department's regulations. As such, it imposes no additional requirement; neither does it in and of itself, create rights, affect others, or require compliance.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.56, Fla. Stat. (1981).
Petitioners have standing to maintain this proceeding. They have been, and will continue to be, substantially affected by the challenged rule, directive, and memoranda. See, Section 120.56, Fla. Stat. (1981). Their standing is not contested by the Department.
When it is alleged that an agency's rule exceeds its authority, the burden is upon the party attacking the rule to show:
That . . . the requirements of the rule are not appropriate to the ends specified
in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling
legislation or that the proposed rule
or the requirements thereof are arbitrary and capricious.
Agrico Chemical Co. v. State, etc., 365 So.2d 759, 763 (Fla. 1st DCA 1979). An arbitrary decision is one not supported by facts or logic. A capricious act is one which is taken without thought or reason, or is irrational. Id. A rule which imposes an arbitrary or capricious requirement constitutes an invalid exercise of delegated legislative authority and is invalid. Id.; Section 120.56(1), Fla. Stat. (1981).
Measured by this standard, Department Rule 33-3.02(6), Florida Administrative Code, is arbitrary and capricious by requiring that all inmates be clean shaven and by failing to allow exemptions for justified medical reasons. This portion of the rule thus constitutes an invalid exercise of delegated legislative authority.
Agency statements which act as rules but are not formally adopted as rules in accordance with Section 120.54 are illicit rules, and subject to invalidation in Section 120.56 proceedings. Section 120.56, Fla. Stat. (1981); Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). It matters not how an agency names or characterizes its statement; rather, the inquiry turns to the purpose and effect of the statement. Id.
Section 120.52 defines "rule for the purposes of the Administrative Procedure Act ("APA"):
(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 . . . .
If an agency statement has general application; if it purports, in and of itself, to create rights and adversely affect others; if it allows subordinates no discretion in implementation; and if it is virtually self-executing, and requires compliance, it is a rule and void unless adopted in accordance with Section 120.54 rulemaking procedures. Stevens, supra, at 296; McDonald v.
Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Department of Commerce v. Matthews Corporation, 358 So.2d 256 (Fla. 1st DCA 1978); Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981). While agencies may formulate emerging policies through adjudication, they cannot, in effect, adopt rules without complying with the rulemaking strictures of Section 120.54. Gulf Stream Park Racing Association v. Division of Pari-Mutual Wagering, 407 So.2d 263, 265 (Fla. 3d DCA 1981).
In Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981), the court held that in marginal administrative rule challenges under Section 120.56 the public interest is better served by permitting rulemaking incentives to operate in Section 120.57 proceedings. In such proceedings, an agency which avoids rulemaking will be required to repeatedly defend and justify its non-rule policy. Barker v. Board of Medical Examiners, 428 So.2d 720, 722 (Fla. 1st DCA
1983). However, this incentive to rulemaking is absent in the state correctional institution setting because inmates may not invoke Section 120.57 proceedings. Section 120.52(10)(d) Fla. Stat. (1981). Section 120.56 rule challenge proceedings are the only meaningful APA remedy available to inmates confronted with invisible policy making--policy making accomplished without giving notice to those directly affected, and without giving them an opportunity to submit written comments. Cf. Straughn v. O'Riordan, 338 So.2d 832, 834 fn. 3 (Fla. 1976).
Measured by these standards, it is concluded that Policy and Procedure Directive 4.07.04; paragraph 82-68.2 of Union Correctional Institution Policy Memorandum 82-68; and that portion of paragraph I. of Union Correctional Institution Policy Memorandum 82-69 (granting a medical exemption to the clean shaven requirement) are illicit rules, i.e. statements having the effect of rules but not adopted as rules, and thus constitute invalid exercises of delegated legislative authority.
The petitioners' proposed findings of fact have been considered in the development of this order. To the extent their proposed findings of fact were consistent with the weight of the evidence, they have been adopted. To the extent they were not consistent with the weight of the evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have not been adopted. Based on the foregoing, it is
DONE and ENTERED this 12th day of October, 1983, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1983.
2/ Interestingly, the Department an order disposing of a petition to initiate rulemaking--acknowledges that "[a] rule is needed in order to provide for medical exemptions from the shaving requirement . . . because it is the established policy of the Department to grant such exemptions and because such policy is in conflict with Rule 33-3.01(6) [requiring that inmates be clean shaven]." (Department Response and Memorandum of Law)
P. O. Box 500
P. O. Box 221
John J. Rimes, III, Esquire Department of Legal Affairs The Capitol, Suite LL04 Tallahassee, Florida 32301
Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard
