STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS L. ADAMS, JOE LEWIS ) HOLLAND, CURTIS HEAD and )

MELVIN DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3206RX

)

DEPARTMENT OF CORRECTIONS, )

STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

This administrative rule challenge proceeding was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on November 15, 1983, at Baker Correctional Institution, Olustee, Florida.

APPEARANCES

For Petitioners: Douglas L. Adams and

Joe Lewis Holland, pro se Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Curtis Head and Melvin Davis, pro se Baker Correctional Institution

Post Office Box 500 Olustee, Florida 32072

For Respondent: Randall A. Holland, Esquire

Assistant Attorney General Room 1601, The Capitol Tallahassee, Florida 32301

ISSUES

Whether certain operating procedures or policies at Baker Correctional Institution, a prison operated by respondent, are unpromulgated rules and therefore invalid under Section 120.56, Florida Statutes (1981)

BACKGROUND

By petition filed with the Division of Administrative Hearings on October 11, 1983, petitioners Douglas L. Adams, Joe Lewis Holland, Curtis Head and Melvin Davis ("petitioners") challenged the validity of various written operating procedures or policies in effect at respondent Department of Corrections' ("Department") Baker Correctional Institution.

At hearing on November 15, 1983, petitioners testified on their own behalf and presented the testimony of John Townsend and Mikell R. Odom. Petitioners' Exhibit Nos. 1, 1A, 2, 3, 3A, 4, 5, 6, 7, and 7A were received into evidence.

The Department presented no evidence.

The transcript of hearing was filed on January 5, 1984. The Department filed posthearing proposed findings of fact and conclusions of law. Petitioners filed proposed findings on February 1, 1984, 11 days late.

Petitioners allege that there are nine policies at Baker Correctional Institution which are illicit, unpromulgated rules. The following findings of fact and conclusions of law address each challenged policy separately.

FINDINGS OF FACT

and CONCLUSIONS OF LAW

I.

Generally CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. $120.56, Fla.Stat. (1981).

   
   

2. Petitioners are substantially affected by the specific policies and procedures at issue. The Department concedes that they have standing to bring and maintain this administrative rule challenge proceeding. See, 120.56, Fla.Stat.

   
   

3. The parties' proposed findings of fact have been considered in preparing this order. To the extent the proposed findings were not consistent with the weight of credible 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 been rejected.

   
   

   II.

   
   

   Findings of Fact

   
   

4. The parties stipulate that the following written policy is in effect at Baker Correctional Institution:

   
   

   Inmates will be permitted to purchase and receive legal materials, such as law books, and keep them in their personal lockers if space is available. Baker Correctional Institution Operating Procedure (I0P) #78-G-1,

   Section VI, and 80-G-34, Section IV, pg. 2 of 3.

   
   

   Conclusions of Law

   
   

5. This policy is not an unpromulgated rule, but rather is a restatement of Rule 33-3.05(6), Florida Administrative Code, which reads, in relevant part:

   (6) Inmates shall be allowed to purchase legal materials (such as law books) at their own expense, limited only by the amount of space available to the inmate for the storage of such items. Inmates shall be allowed to keep legal material in their quarters subject to storage limitations.

   
   

   III.

   
   

   Findings of Fact

   
   

6. The parties stipulate that the following written policy is in effect at Baker Correctional Institution:

   
   

   If the inmate does not send his property out of the institution within thirty (30) days after proper notification, he shall forfeit ownership of such and it will be disposed of by the institution in accordance with

   Department of Corrections rules and regulations 33-3.2, 33-3.06, and in accordance with the guidelines on DC Form #4, Authorization for Disposition of Mail and Property. I0P #78-G-3, Section VII p. 2 of 2, and 80-G-32, Section

   III B.

   
   

   Conclusions of Law

   
   

7. Contrary to petitioners' contention, it has not been shown that this policy has the effect of a rule but was not promulgated as such. See, State Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977) In effect, the challenged policy simply requires that impounded or unauthorized inmate property be disposed of in accordance with Department rules and DC Form #4, Authorization for Disposition of Mail and Property, an authorization which each inmate must sign as a condition of being allowed to keep personal property within a correctional institution. See, Section 3.025(7), (8), Fla. Admin. Code. DC Form #4, which is not in evidence, has not been shown to contain a Department interpretation of law or policy which is virtually self-executing, intended by its own effect to create rights, require compliance, or otherwise have the direct and consistent effect of law. Stevens, supra at 296; McDonald

   v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

   
   

   IV.

   
   

   Findings of Fact

   
   

8. Petitioners allege that there is an unwritten rule at Baker Correctional Institution which requires that any and all legal material, books, and files be destroyed by the institution after 30 days.

   
   

9. There is no written or unwritten policy at Baker Correctional Institution which imposes such a requirement.

   Conclusions of Law

   
   

10. Petitioners' claim is rejected for failure to prove the existence of such a policy at Baker Correctional Institution.

    
    

    V.

    
    

    Findings of Fact

    
    

11. The parties stipulate that the following written policy statement is in effect at Baker Correctional Institution:

    
    

    Any radio that is altered in any way, cabinet, case electronically and/or electrically will be confiscated and the inmate will lose possession of the radio and/or disciplinary action will be taken. I0P #78-G-15, Section VIII, pg. 2 of 3.

    
    

    Conclusions of Law

    
    

12. This policy is nothing more than a logical restatement of Rule 33- 3.06(1)(b)

    
    

    Any item or article not originally contraband shall be deemed contraband if it is passed from one inmate to another without authorization or if it is altered from its original condition. (Emphasis added)

    
    

    Further, Subsection (7)(d) of this rule allows contraband to be confiscated and Rule 33-3.08, generally, authorizes disciplinary action against inmates who violate Department rules.

    
    

    VI.

    
    

    Findings of Fact

    
    

13. The parties stipulate that the following institutional operating procedure is in effect at Baker Correctional Institution:

    
    

    Inmates are prohibited from using typewriters for personal correspondence, filing grievances, or other personal use. Any violation of this operating procedure may constitute a basis for disciplinary action. I0P #78-G-21.

    
    

14. This is a Department policy, never promulgated as a rule, which is uniformly applied throughout Baker Correctional Institution, is--by its own terms--virtually self-executing, and intended to require compliance and otherwise have the consistent effect of law.

    
    

    Conclusions of Law

    
    

15. This policy has the effect of a rule, as defined by Section 120.52(14), Florida Statutes (1981), and is therefore an invalid exercise of delegated legislative authority. See, Stevens, supra. The Department, in its

    post-hearing proposed findings of fact and conclusions of law, "does not deny that . . . [this policy] is an invalid rule."

    
    

    VII.

    
    

    Findings of Fact

    
    

16. Petitioners allege that there is an unwritten policy at Baker Correctional Institution which allows only one legal size envelope, at a time, to be issued an inmate.

    
    

17. There is no such policy. Rather the number of legal size envelopes issued to inmates depends on the availability of envelopes and the reasonableness of the requests. Within these guidelines, the exact number of envelopes issued is left to the discretion of the correctional officer involved.

    
    

    Conclusions of Law

    
    

18. Since this policy has been shown to operate as no more than a guideline, subject in application to the discretion of the enforcing officer, it is not a rule within the meaning of Chapter 120, Florida Statutes (1981), and need not be promulgated as such. See, Department of Highway Safety and Motor Vehicles v. Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981).

    
    

    VIII.

    
    

    Findings of Fact

    
    

19. The parties stipulate that the following written policy is in effect at Baker Correctional Institution:

    
    

    Visitors or regular visitors will either be Saturday or Sunday, but not both days. I0P #78-6-7.

    
    

20. This policy, never promulgated as a rule, is uniformly applied, virtually self-executing, and intended by its own effect to create rights or require compliance, or otherwise have the direct and consistent effect of law.

    
    

    Conclusions of Law

    
    

21. This policy is, in effect, a rule, but was not promulgated as such. It is therefore an invalid exercise of delegated legislative authority. See, Stevens, supra; Sumner v. Department of Corrections, (DOAH 82-676R), 4 FALR 1198-A (1982), where a memorandum, issued by the Superintendent of Polk Correctional Institution, restricting prisoners' visitation rights to one weekend day, was declared invalid.

    
    

    IX.

    
    

    Findings of Fact

    
    

22. The parties stipulate that the following written policy is in effect at Baker Correctional Institution:

    We will discontinue receiving funds for inmates from visitors. Interoffice Memo 4-1-83.

    
    

23. This policy, never promulgated as a rule, is applied uniformly, virtually self-executing, and intended by its own effect to create rights or require compliance, or otherwise have the direct and consistent effect of law.

    
    

    Conclusions of Law

    
    

24. This policy has the effect of a rule, but was not promulgated as one. Thus it is an invalid exercise of delegated legislative authority. See, Stevens, supra; Sumner, supra. Contrary to the Department's contention, this policy is not a mere restatement of Rule 33-3.06(5) which, at least by implication, allows visitors to bring money to inmates of a correctional institution.

    
    

    Findings of Fact

    
    

25. The parties stipulate that the following written policy is in effect at Baker Correctional Institution:

    
    

    Only one dollar bills will be spent by visitors in the visiting park.

    
    

26. This policy, too, is uniformly applied, virtually self-executing, and intended by its own effect to create rights or require compliance, or otherwise have the direct and consistent effect of law.

    
    

    Conclusions of Law

    
    

27. This policy, which has the effect of a rule but was not adopted as such, is therefore an invalid exercise of delegated legislative authority. See, Stevens, supra; Sumner, supra. Further, the Department's post-hearing proposed findings of fact state at page 5:

The . . . [Department] does not deny that the above written policy is an invalid rule.

For these reasons, it is ORDERED:

1. That the Department procedures or policies described in Sections VI, VIII, IX, and X, are invalid exercises of delegated legislative authority; and

   
   

2. That, in all other respects, petitioners Petition to Determine the Invalidity of a Rule, filed October 11, 1983, is denied.

DONE and ENTERED this 6th day of February, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1984.

COPIES FURNISHED:

Randall A. Holland, Esquire Assistant Attorney General Room 1601, The Capitol Tallahassee, Florida 32301

Douglas L. Adams, Joe Lewis Holland

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Liz Cloud, Chief Department of State

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Curtis Head and Melvin Davis Baker Correctional Institution Post Office Box 500

Olustee, Florida 32072

Docket for Case No: 83-003206RX

Orders for Case No: 83-003206RX