STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS L. ADAMS, CURTIS )

HEAD, and JOE HOLLAND, )

)

Petitioners, )

)

v. ) CASE NO. 83-3648RE

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on December 12, 1983, at Baker Correctional Institution, Olustee, Florida.

APPEARANCES

For Petitioner: Douglas L. Adams, pro se

Post Office Box 500 F-42 Olustee, Florida 32072

For Respondent: M. Catherine Lannon, Esquire

Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

ISSUE

Whether the Florida Department of Corrections' Emergency Rule 33ER83-3 constitutes an invalid exercise of delegated legislative authority for the reasons contained in petitioner's Petition for Determination of Validity of Emergency Rule, dated November 21, 1983.

BACKGROUND

By Petition for Determination of Validity of Emergency Rule, dated November 21, 1983, petitioners, Douglas L. Adams, Curtis Head, and Joe Holland sought to invalidate respondent Department of Corrections' ("Department") Emergency Rule 33ER83-3. The hearing was scheduled for December 12, 1983.

Prior to hearing, the Department filed three motions which were heard by telephone conference call on December 9, 1983. The Department's Motion to Deny Petition for lack of standing was denied. A Motion for More Definite Statement was granted and complied with. And a Motion to Strike the names of Curtis Head and Joe Holland as party-petitioners in this cause was granted. The rule challenge petition was signed only by Douglas L. Adams, who was not alleged to be Mr. Head's or Mr. Holland's attorney, or their qualified representative.

At hearing, Douglas L. Adams, the only remaining petitioner ("petitioner"), presented the testimony of John L. Townsend, Jr., Dr. Di-Huyen Luu, Barbara L. Jefferson, R. N., Lt. Henry W. Harris, Willie McGuire, Haywood T. McKinney, and Joseph Holland. The Department called no witnesses. Petitioner's Exhibit Nos.

1 through 7 and 9, and Respondent's Exhibit No. 1 were received into evidence. 1/

Posthearing proposed findings of fact and conclusions of law were filed by December 15, 1983.

Based on the evidence presented at the hearing, the following facts are determined:

FINDINGS OF FACT

1. On November 18, 1983, the Department filed and adopted Emergency Rule 33ER83-3, which provides:

   
   

   Shaving. All male inmates in the custody of the Department shall be clean shaven.

   An exemption from this requirement may be granted on medical grounds if it is determined by qualified medical

   staff that shaving would be detrimental to the inmate's health. In such cases the inmate may be required to keep his facial hair closely trimmed with scissors or clippers.

   
   

2. In the December 2, 1983, Florida Administrative Weekly, Vol. 9., No. 48, the Department stated its reasons for finding an immediate danger to the public health, safety or welfare, justifying adoption of the emergency rule:

   
   

   The Department's rule requiring inmates to be clean shaven has recently been held invalid because

   of a failure to include provision for medical exemptions. If inmates were able to grow beards, mustaches and other facial hair it would seriously interfere with the identification of inmates by staff. To maintain institutional security and order it is essential that staff members be able to identify inmates easily.

   
   

3. The emergency rule, by its terms, requires all male inmates in the Department's custody to be clean shaven, but authorizes a medical exemption. The rule applies to petitioner Adams because he is a male inmate in the Department's custody who grows facial hair. These facts are inferences which arise from the following: The hearing was held in guarded quarters at Baker Correctional Institution; Mr. Adams was obviously a male; and he wore a uniform identical to that worn by two inmates who testified. The clean-shaven rule is strictly enforced by the Department. One enforcement checkpoint is the inmate dining hall. Inmates with facial hair, and without no-shaving passes (proof of medical exemption) are required to shave their facial hair prior to eating.

   Food is not withheld, however, if they promise to shave immediately after eating. (Testimony of McGuire)

   
   

4. There are sound reasons which justify the adoption of the rule on an emergency basis. If inmates were allowed to grow facial hair, such as beards and mustaches, the Department's ability to quickly and accurately identify them would be seriously impaired. Inmates with facial hair could easily and quickly alter their appearance by shaving. This would make it more difficult to identify inmates who commit crimes such as rape, robbery, and assault within the correctional institutions. For the same reasons, it would be more difficult to identify and apprehend inmates who successfully escape because the picture distributed to law enforcement agencies would depict inmates only in their

   clean-shaven condition. (Testimony of Townsend)

   
   

5. The extent to which facial hair changes a person's appearance is illustrated by the recent experience of John Townsend, Assistant Superintendent of Baker Correctional Institution. During a two-week vacation in August 1983, he grew a mustache. On his return, he toured the correctional institution without being recognized by correctional officers. Two officers required him to show identification. (Testimony of Townsend)

   
   

6. There is a bona fide infectious condition known as Pseudo Folliculitis Barbae ("PFB") which occasionally afflicts male inmates. In its acute form, it infects an inmate's face causing symptoms such as sores, puss, and bumps. Medical treatment consists of applying an antihistamine facial cream such as Caladryl, and authorizing the inmate to forgo close shaving for approximately two weeks. In lieu of shaving, whiskers are cut with scissors or clippers; this allows facial hair to grow to a length of 1-2 millimeters. PFB symptoms vary, and actual medical treatment must be decided on an individual basis. Some conditions may require only facial cream, others may require no-shaving passes for periods shorter or longer than two weeks. (Testimony of Di-Huyen Luu, M.D.)

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s120.56, Fla. Stat. (1981).

   
   

8. Petitioner Douglas Adams has standing to challenge the Department's Emergency Rule 33ER83-3 since he is "substantially affected" by it within the meaning of Section 120.56(2), Florida Statutes (1981). See, Professional Firefighters v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981)

   
   

9. Petitioners Curtis Head and Joe Holland, on the Department's motion, are dropped as parties to this proceeding since they did not "file" the rule challenge petition, or authorize it to be filed in their behalf, within the meaning of Section 120.56(2).

   
   

10. Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979) described the task of a hearing officer in a rule challenge proceeding:

    
    

    [T]he hearing officer must look to the legislative authority for the rule

    and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one

    who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its authority; 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 or capricious.

    365 So.2d at 763.

    
    

    The court further stated:

    
    

    Rulemaking by an agency is quasi- legislative action and must be considered with deference to that function. In Florida Beverage Corporation v. Wynne, 306 So.2d

    200 (Fla. 1st DCA 1975), this Court said: "Where the empowering

    provision of a statute states simply that an agency may 'make such rules and regulations as may be necessary to carry out the provisions of this Act', the validity of regulations promulgated thereunder will be sus- tained so long as they are reasonably

    related to the purposes of the enabling legislation, and are not arbitrary or capricious."

    365 So.2d at 762.

    
    

11. Emergency rules, which are effective on filing, may be adopted if an agency finds an immediate danger to the public health, safety, and welfare, and if the procedure used to adopt the rule is fair, and necessary to protect the public interest. Prior to or at the time the rule is adopted, the agency must publish in the Florida Administrative Weekly its reasons for finding an immediate danger, and its reasons for concluding that the adoption procedure is fair. Emergency rules have a life span of no more than 90 days. 120.54(9)(a) Fla. Stat. (1981)

    
    

12. Petitioner challenges the Department's emergency rule, contending: 1) that a true emergency does not exist; 2) that advance notice was not given; 3) that the rule is an improper response to a stipulated agreement entered in another rule-challenge proceeding; 4) that the Department failed to publish its reasons for finding an immediate danger to the public, and concluding that the adoption procedure was fair; 5) that the actual reasons for the rule are other than those announced by the Department; 6) that the rule is not reasonably related to the purpose of an emergency rule on shaving; 7) that the rule is arbitrary, capricious, irrational, oppressive, and an abuse of discretion; 8) that it is not reasonably related to the health care of petitioner or the public; and 9) that it is retributive and inconsistent with Section

    20.315(1)(b)-(c), Florida Statutes (1981), which requires the Department to protect society by substituting training and treatment for retributive

    punishment, and to provide an environment for inmates where rehabilitation is possible.

    
    

13. These contentions lack merit. Sections 944.09(a) and (b) and 945.21(1)(a) and (m), Florida Statutes (1981), authorize the Department to adopt rules governing the administration of the correctional system, including rules relating to the rights and conduct of prisoners, and such other rules which, in its opinion, "may be necessary for the efficient operation and management of the correctional system." Id.

    
    

14. The emergency rule falls squarely within this grant of authority. It governs the rights and conduct of prisoners and furthers the efficient operation and management of the correctional system. Yet it does not promote efficiency at the cost of an inmate's health. It is not arbitrary, capricious, irrational, or retributive. Furthermore, although petitioner attacks the rule on procedural grounds, he has not shown that the rule was adopted in violation of any procedural requirement of Section 120.54(9)(a).

    
    

15. It is concluded, therefore, that petitioner has failed to sustain his burden under Agrico, supra. Consequently, his petition to invalidate Emergency Rule 33ER83-3 must be denied.

    
    

16. The Department's proposed findings of fact have been considered in preparing this final order. To the extent its proposed findings were consistent with the weight of credible evidence adduced at hearing, they have been adopted and are reflected in this order. To the extent the findings were not consistent with the weight of the 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.

Based on the foregoing, it is ORDERED:

1. That petitioners Curtis Head and Joe Holland are dropped as parties,

   and

   
   

2. That the petition to invalidate Emergency Rule 33ER83-3 is denied.

DONE and ENTERED this 16th day of December, 1983, 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 16th day of December, 1983.

ENDNOTE

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

COPIES FURNISHED:

Douglas L. Adams, Curtis Head, and Joe Holland Post Office Box 500 F-42 Olustee, Florida 32072

M. Catherine Lannon, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

Liz Cloud, Chief

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

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

Docket for Case No: 83-003648RX

Orders for Case No: 83-003648RX