STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS L. ADAMS, KENNETH E. ) MOORE, JOE LEWIS HOLLAND, )

HAYWARD T. McKINNEY, JOE ) RICHARDSON and STEPHEN HARKINS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3329RX

)

DEPARTMENT OF CORRECTIONS, )

STATE OF FLORIDA, )

)

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 December 1, 1983, at Baker Correctional Institution.

APPEARANCES

For Petitioners: Douglas L. Adams

Kenneth E. Moore Joe Lewis Holland Haywood T. McKinney Joe Richardson and

Stephen Harkins, pro se

Baker Correctional Institution Olustee, Florida

For Respondent: Susan Tully, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

and

Robert Leeper, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Petitioners challenge the validity of Rule 33-3.045, Florida Administrative Code, promulgated by Respondent, as an invalid exercise of delegated legislative authority. Further, Petitioners also challenge a Policy and Procedure Directive dated February 20, 1981, and revised on August 23, 1983, and an Interoffice memorandum of Baker Correctional Institution dated October 12, 1983, as unpromulgated, and therefore invalid, rules.

At the final hearing, Petitioners called Michael Ralph Odom, Walter R. Woodbridge, Richard Kirkland, Stephen E. Harkins, Kenneth E. Moore, Joe Richardson, and Douglas L. Adams as witnesses. Petitioners offered Petitioners' Exhibits 1 through 8 and 11, which were received into evidence. Respondent called no witnesses and offered no exhibits for inclusion in the record.

Counsel for Respondent has submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. Petitioners have made no such submission. To the extent that the proposed findings of fact submitted by Respondent are not included in this order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Petitioners Doulgas L. Adams, Kenneth E. Moore, Joe Louis Holland, Haywood McKinney, Joe Richardson, and Stephen Harkins are all inmates incarcerated in Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a correctional facility operated by the Department of Corrections of the State of Florida.

   
   

2. In December of 1982 and July of 1983, Respondent amended Rule 33-3.045, Florida Administrative Code, to delete certain items which had previously allowed inmates to receive in Christmas packages from friends or family outside the prison. Specifically, these items were apples, candies, chewing gum, cookies, fruit cakes, and nuts, including unshelled English walnuts. In addition, the amended rule provided that items sold in a correctional facilities canteen would not be approved for a package permit. Rule 33-3.045(2)(g), Florida Administrative Code.

   
   

3. On August 23, 1983, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 3.04.11, entitled Inmate Package Permit. Included in Section 70 of this directive is the provision that ". . . items sold in Institution Canteens will not be approved on Permit." This provision is substantially identical to the requirement contained in Rule 33- 3.045(2)(g), Florida Administrative Code. This directive, which was introduced into evidence in this proceeding as Petitioners' Exhibit 3, is silent as to the deletions of the aforementioned items from the Christmas package permitting system.

   
   

4. On October 12, 1983, the Assistant Superintendent of Baker Correctional Institution issued an interoffice memorandum concerning Christmas package permits which provided, in pertinent part, as follows:

   
   

   Recently concerns have been voiced by the inmate population regarding

   the Christmas Package Permits and what items may be received, particularly in the area of candy and cookies, as well as personal hygiene items.

   
   

   In March 1983, the Department of Corrections revised Policy and Procedure Directive 3.04.11, Inmate Package Permits and deleted Additional Christmas Items to include applies, candies, chewing gum, cookies,

   fruit cakes and nuts. Therefore, since

   these items are no longer permissible on the Christmas Package Permit by departmental policy, it would not make any difference whether they were homemade or store bought items.

   
   

   In reference to the 'Other Items' section of the Package Permit regarding personal hygiene, the same departmental Policy

   and Procedure Directive on Inmates Package Permits states that items sold in the institutional canteen will not be approved on permit. Our institutional canteen provides a wide variety of personal hygiene items which are the same, or comparable to thos [sic] items requested on the Package Permit and, therefore, we will not be approving

   other items on the Christmas Package Permit. . .

   
   

5. During 1982, approximately two thousand Christmas package permits were issued to inmates at Baker Correctional Institution. Approximately fourteen hundred Christmas packages were received at that facility, of which approximately four hundred contained contraband items. The items which Respondent deleted from the list of acceptable commodities to be received by inmates in Christmas packages were found by Respondent to lend themselves to the introduction of contraband. Examples of how contraband might be received into a correctional institution through these items would include inserting contraband into an unshelled nut and replacing the shell; injecting oranges with hypodermic needles containing a contraband substance; baking drugs or alcohol into cakes, cookies, brownies, or other pastry goods; and unwrapping items such as chewing gum, introducing a contraband substance, such as cocaine into the product, and resealing it in its original wrapper. Respondent has encountered great difficulty in being able to detect the presence of contraband within package goods. Contraband such as alcohol, marijuana, or other drugs is difficult if not impossible to detect within baked goods even with an x-ray machine. Respondent does not have sufficient staff or facilities necessary within mailrooms located within correctional facilities to adequately monitor these items during the Christmas season. Further, the items deleted from the Christmas Package Permit by the amendments to Rule 33-3.045, Florida Administrative Code, are generally available within either the canteen at various correctional facilities or are otherwise provided to the inmates at said institutions.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 944.09, Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. All persons committed to the department shall be supervised by it.

   2. The department shall publish

      rules and regulations and make a copy available for review by each employee and inmate. The rules and regulations shall include and relate to:

      (a) The rights of inmates.

      * * *

      (f) Mail to and from the state correctional system.

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

      
      

8. Section 945.21(1)(j) authorizes the Department of Corrections to promulgate regulations governing mail to and from inmates.

9. Section 944.47, Florida Statutes, provides, in part, as follows: (1)(a) Except through regular

   channels as authorized by the officer

   in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for purposes of this section, to wit:

   1. Any written or recorded communication or any currency or coin given or transmitted, or intended to be given or transmitted, to any inmate

      of any state correctional institution.

   2. Any article of food or clothing given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

   3. Any intoxicating beverage or beverage which causes or may cause an intoxicating effect.

   4. Any narcotic, hypnotic, or excitatative drug or any drug of whatever kind or nature. . .

   
   

10. Where, as here, the legislature has delegated broad 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 adopted as rules its policy statements of general applicability . . . [p]ermissible interpretations of 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 in this record of any evidence upon which it could be concluded that the challenged rule is either arbitrary or capricious, it is specifically concluded as a matter of law that the challenged rule constitutes a permissible interpretation of Respondent's enabling legislation, and that Petitioners have failed to establish any grounds for holding the challenged rule invalid.

    
    

11. 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 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 as 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). In such cases, as with the policy and procedure directive and interoffice memorandum attacked in this proceeding as unpromulgated rules, it is not the directive or the interoffice memorandum themselves, but rather the validly promulgated rules which create or otherwise affect the rights of persons subject to their application. The policy and procedure directive and the interoffice memorandum involved in this proceeding do no more than reiterate the requirements contained in Rule 33- 3.045, Florida Administrative Code, and were not, therefore, required to be formally adopted.

Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, the relief sought by Petitioner should be, and the same is hereby, DENIED, and the petition dismissed.

DONE AND ENTERED this 23rd day of April, 1984, at Tallahassee, Florida

WILLIAM E. WILLIAMS

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 23rd day of April, 1984.

COPIES FURNISHED:

Louie L. Wainwright, Secretary

Kenneth E. Moore Department of Corrections

Joe Louis Holland 1311 Winewood Boulevard

Haywood T. McKinney Tallahassee, Florida 32301 Joe Richardson

Stephen Harkins Louis A. Vargas, Esquire Baker Correctional Institution General Counsel

Post Office Box 500 Department of Corrections Olustee, Florida 32072 1311 Winewood Boulevard

Tallahassee, Florida 32301

Susan Tully, Esquire

Assistant Attorney General Liz Cloud, Chief

Department of Legal Affairs Bureau of Administrative Code Suite 1601, The Capitol Department of State Tallahassee, Florida 32301 The Capitol, Suite 1802

Tallahassee, Florida 32301

Robert Leeper, Esquire

Department of Corrections Carroll Webb, Executive Director 1311 Winewood Boulevard Joint Administrative Procedures Tallahassee, Florida 32301 Committee

120 Holland Building

Douglas L. Adams Tallahassee, Florida 32301 Union Correctional Institution

Post Office Box 221 Raiford, Florida 32083

Docket for Case No: 83-003329RX

Orders for Case No: 83-003329RX