STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3104RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to stipulation of the partiess this cause came on for consideration before the Hearing Officer in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gary M. Piccirillo, pro se

Lake City Community Correctional Institution

Post Office Box 777

Lake City, Florida 32055

For Respondent: John J. Rimes, III, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

By petition for Administrative Determination of the Invalidity of the Rule, Petitioner has challenged Union Correctional Institution Operating procedures No. 82-69 as an unpromulgated rule of the Department of Corrections. Final hearing in this cause was scheduled for November 4, 1983, by Notice of Hearing dated October 19, 1983, but for reasons hereinafter set forth no final hearing was conducted. The parties stipulated that the challenged operating procedure and any relevant rules contained in Chapter 233, Florida Administrative Code, could be considered by the Hearing Officer in entering this Final Order.

FINDINGS OF FACT

1/ The parties to this proeeeding have stipulated that Petitioner has standing as an inmate at Union Correctional Institution to challenge the provisions of Union Correctional Institution Operating Procedures No. 82-69. The parties have further stipulated that all of the provisions contained in the aforementioned operating procedure which are not self-limiting are intended to be either System or institutionwide in their impact. As mentioned above,

Respondent and Petitioner have stipulated into evidence the challenged operating procedures and any relevant rules contained in Chapter 33, Florida Administrative Code.

2/ On or about December 15, 1976, Union Correctional Institution Operating Procedures No. 82-69 was initially issued. These procedures were revised on September 13, 1982, and were reviewed and continued in an operational status on May 23, 1983.

1. The challenged operating procedures were issued ". . . to establish criteria for the placement of inmates in an Administrative Confinement status and to establish institutional policy and procedures applicable to such confinement." The operating procedures purport to be issued pursuant to authority contained in Sections 944.28 and 945.21, Florida Statutes, and Chapter 33-3, Florida Administrative Code.

   
   

2. In the briefing process of this proceeding Respondent has conceded that the following portions of the challenged operating procedure constitute unpromulgated rules: That portion of 82-69.7A on pages 4 and 5 dealing with personal property which an inmate will be permitted to retain in his possession while in administrative confinement; 82-69.7B concerning inmate bank withdrawals; 82-69.7C dealing with canteen privileges; 82-69.7D dealing with library privileges; 82-69.7F concerning clothing for inmates in administrative confinement; 82-69.7K concerning religious material available to administrative confinement inmates; 82-69.7M concereing visiting privileges; 82-69.7U governing notarizing of legal papers and materials; and 82-69.8 governing restrictions to be imposed on privileges granted to inmates by virtue of the operating procedure.

   
   

3. Further, Petitioner challenges in his memorandum Sections 82-69.4, entitled Criteria for Administrative Confinement, 82-69.70, entitled Medical Procedures, and 82-69.7Q, entitled Inmate Count procedures. Any sections of the operating procedures not argued by Petitioner in his Proposed Findings of Fact and Conclusions of Law have been considered abandoned.

   
   

4. Section 82-69.4 of the operating procedures, entitled Criteria for Administrative Confinement, provides as follows:

   
   

   Inmates may be placed in Administrative Confinement who pose an immediate threat of violence or disruption to themselves, other inmates, Department employees, or the institution generally, or as a result of threats of physical harm from other inmates, or other good reasons. Reasons for placing inmates in Administrative

   Confinement are further defined as follows:

   1. Awaiting Disciplinary Action: When the evidence clearly suggests that to allow the inmate to remain in open population would present a clear

      danger to other inmates or to the security of the institution. Placing inmates in Administrative Confinement to await a disciplinary hearing is permitted only when there is a danger to the welfare of the inmate or other inmates in the population, or when

      the security and good order of the institution is in jeopardy.

   2. Pending Trial: For a crime committed in the Department when the facts

      clearly suggest that to allow the inmate to remain in open population would present a clear danger to the inmate, other inmates, or to the security of the institution.

   3. Custody Risk: Cases when the facts clearly indicate the inmate cannot be housed in the general inmate population.

   4. Inmates who, after removal from disciplinary confinement, clearly appear to the Classification Team

      to be a potential assaultive or disruptive factor if placed in the inmate population and who, therefore, cannot reasonably and safely be returned to the inmate population.

   5. For protection of the inmate or other inmates.

      
      

5. The aforecited provisions of Section 82-69.4 of the operating procedures are a virtual recapitulation of the requirements currently contained in Rule 33-3.081(1) and (4) Florida Administrative Code. The requirements of the challenged operating procedures neither create, add to, nor detract from the rights of inmates at Union Correctional Institution.

   
   

6. Section 82-69.7 0.1. of the operating procedures provide as follows:

   
   

   1. Health Appraisal

   1. Prior to placement in confinement the inmate shall be escorted to the outpatient clinic for health appraisal. (In cases of combative

      or assaultive behavior, the appraisal shall be done as soon as possible after being confined.)

   2. Inmates who are acutely ill or whose mental condition or behavior shows sudden, rapid change (which may be due to the ingention[sic] of stimulants, drugs, alcohol, medications, or other toxic sub- stances, whether taken legally

      or illegally) who exhibit acute personality changes or other markedly bizarre behavior, or who have exhibi- ted a recent, serious intent to harm themselves, shall not be confined until the inmate's health status

      has been evaluated by the medical professional or paraprofessional on duty. If it is feasible to initially confine such persons in

      the clinic for observation, the medical staff member on duty will monitor the health status of the inmate in confinement at least every two hours, and more often as indicated in individual cases.

   3. The health appraisal must include as a minimum, the following:

   1. A brief review of health record

   2. Determine any medication the inmate is currently on that

      mustbe continued while in con finement, and essential scheduled

      health appointments for call-out.

   3. Vital signs, including temperature, blood pressure, pulse and respiration

   4. Determine any health complaints

   5. Perform physical examination as necessary based especially on any noted complaints

   6. For inmates in Medical Grades III or IV, determine any necessary

      continuity of care while in confinement

   7. An overall statement as to the fitness of the inmates' confinement will be based on the findings above

   
   

7. No such specific procedure dealing with health appraisal was contained in either Chapters 944 or 945, Florida Statutes, or Chapter 33, Florida Administrative Code. These procedures are mandatory, and must be completed before an inmate may be placed in administrative confinement.

   
   

8. The remaining provisions of Section 82-69.7 0 relate to Respondent's internal management of routine sick call, emergency medical procedures, medication, and inmate visits by the institution medical director. These sections do not purport to create or otherwise affect any individual inmate right.

   
   

9. Section 82-69.7Q, entitled Inmate Count Procedures, provides, in part, that:

   
   

   The special nature of inmates confined on Administrative Confinement require maximum supervision and control. Consequently, there will be a total of six counts con- ducted throughout the day . . . .

   
   

   This section of the operating procedures goes on to establish the times and procedures for conducting the six inmate counts: an 8 a.m. response count; 12 noon response count; a 4:30 p.m. response count; a 9 p.m. master count; a 12 midnight body count; and a 4 a.m. body count. The only act required of inmates in this section is that they present themselves at their cell door and respond with their inmate number when their name is called at the 8 a.m., 12 noon, and 4:30 p.m. response counts.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of, and the parties to, this proceeding. Section 120.56, Florida Statutes.

    
    

11. Section 120.52(15) , Florida Statutes, defines the term "rule" to mean:

    
    

    . . . 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 information not specifically required by statute or by existing rule . . . .

    
    

    Specifically excluded from the definition of a "rule" is any ". [i]nternal

    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." Section 120.52(15)(a), Florida Statutes. 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 and 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) . However, where agency statements that have not been adopted as rules simply track the language of either a statute or a validly adopted rule, it is unnecessary that they be adopted pursuant to the requirements of Section 120.54, Florida Statutes. See, DeDakis v. Florida Real Estate Commission, 388 So.2d 22 (Fla. 1st DCA 1980).

    
    

12. It is specifically concluded, as a matter of law, that Section 82- 69.4, Criteria for Administrative Confinement, contained in the challenged operating procedures is essentially a restatement of various provisions of Rule 33-3.081, Florida Administrative Code, and therefore does not constitute a rule. Further, Section 82-69.7 Q, Inmate Count Procedures, constitutes an internal management memorandum within the meaning of Section 120.52(15)(a) , Florida Statutes, and was therefore not required to be adopted as a rule. Finally, it is concluded that the following portions of Union Correctional Institution Operating Procedures No. 82-69 constitute unpromulgated, and therefore invalid, rules: that cortion of Section 82-69.7 A on pages 4 and 6 dealing with personal property which an inmate will be permitted to retain in his possession while in administrative confinement; Section 82-69.7 P governing inmate bank withdrawals; Section 82-69.7 C governing canteen privileges; Section 82-69.7 D delineating libarary privileges; Section 82-69.7 F governing clothing while in administrative confinement; Section 82-69.7 K regarding religious material; Section 82-69.7 N establishing visiting privileges; Section 82-69.7 0.1 relating to health appraisals of inmates; Section 82-69.7 U regulating notarizing of legal papers and materials; and, Section 82-69.8 establishing restrictions on inmate privileges while in administrative confinement.

DONE AND ENTERED this 24th day of April, 1984, at Tallahassee, Florida.

WILLIAMS 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 24th day of Arpil, 1984.

COPIES FURNISHED:

Gary M. Piccirillo Liz Cloud, Chief

Lake City Community Bureau of Administrative Code Correctional Institution Department of State

Post Office Box 777 The Capitol, Suite 1802 Lake City, Florida 32055 Tallahassee, Florida 32301

John J. Rimes, III, Esquire Carroll Webb, Executive Director Assistant Attorney General Joint Administrative Procedures Department of Legal Affairs Committee

The Capitol, LL04 120 Holland Building Tallahassee, Florida 32301 Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32301

Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-003104RX

Orders for Case No: 83-003104RX