STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3698RX

)

DEPARTMENT OF CORRECTIONS, )

STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a hearing was held in the above styled matter before Marvin E. Chavis, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 5, 1984, in Olustee, Florida.

APPEARANCES

For Petitioners: Douglas L. Adams, Curtis Head,

Joe Lewis Holland and Tommy Green, pro se Post Office Box 500F-42

Olustee, Florida 32072

For Respondent: John J. Rimes, III, Esquire

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

ISSUES AND BACKGROUND

This case concerns the issue of whether Baker Correctional Institution Operating Procedure 78-G-1 is a rule not promulgated pursuant to Section 120.54, Florida Statutes (1981) , and therefore is an invalid exercise of delegated legislative authority.

The Petitioners initiated this challenge to Operating Procedure 78-G-1 by the filing of their petition with the Division of Administrative Hearings on December 2, 1983. The case was assigned to the undersigned Hearing Officer on December 12, 1983, and a formal hearing was held on January 5, 1984. At the formal hearing, the Petitioners called as witnesses Wilfred M. Ellis, James C. Wolf, Willard A. Jackson, and David Keith Allen. Petitioner Joe Lewis Holland testified on his own behalf. The Petitioners offered and had admitted into evidence Petitioners' Exhibits 1-3. The Respondent offered no evidence.

The Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of

law are inconsistent with the findings of fact and conclusions contained in this order, they are rejected as not supported by the evidence or unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. Petitioners are inmates incarcerated at Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a prison operated by the Department of Corrections.

   
   

2. The Superintendent of Baker Correctional Institution issued Operating Procedure 78-G-1, which was originally issued on June 21, 1978, and revised April 11, 1983, and is entitled "Preparation of Legal Documents." This operating procedure is addressed to all inmates of Baker Correctional Institution and sets forth the procedures inmates are to follow in obtaining all necessary support to prepare legal documents. Section X of that operating procedure is titled "Copies of Legal Documents" and provides:

   
   

   The Institution shall provide copying services for inmates who need legal documents and accompanying evidentiary material copied for submittal to courts or administrative bodies. A charge of

   15 cents per page for all copies provided to inmates will be made and collected in advance of providing the copies to the inmate. Copying services shall be

   provided without charge if there is less that $5.00 in the inmate's account. The inmate may make arrangements for copying services by writing his Classification Specialist. Each Specialist will arrange for the copying to be completed as

   soon as practical and will then complete procedures to have the inmate be properly charged for the service.

   
   

   This operating procedure applies only within Baker Correctional Institution. This operating procedure was not promulgated as a rule in accordance with the procedures set forth in Florida Statute 120.54 (1981)

   
   

3. The Superintendent considered the operating procedure to be authorized by those statutes, rules and directives contained in the referenced paragraph of the Operating Procedure No. 78-G-1. Those references are:

   
   

   Florida Statutes Chapter 944.09, 944.11,

   945.21 and 20.315

   Department of Corrections Rules & Regulations 33.03.05

   Department of Corrections Policy and Procedure Directive No. 4.07.06

   and 4.10.51.

   
   

4. Under the Operating Procedure 78-G-1, an inmate desiring copies to be made of legal materials must submit a written request for the copies to his Correctional Probation Officer (previously called Classification Specialist)

   Generally, all such requests are answered within seven (7) days of receipt of the request. If there is a short deadline for filing these materials with a court or other body, then the officer expedites the request. Each officer has the discretion to complete the copying of materials in a time period shorter than seven (7) days. If the inmate has an extremely short deadline to meet, then a pass can be obtained for the inmate to personally go to the library building to have copies made.

   
   

5. Subsequent to the issuance of Operating Procedure 78-G-1, the Department of Corrections promulgated Rule 33-3.051, titled "Copying Services for Inmates." This rule is not being challenged in the instant case and provides:

   
   

   1. All institutions and facilities shall provide photographic copying services to inmates submitting legal documents and accompanying evidentiary materials to courts and administrative bodies.

   2. Documents will be copied only if they are necessary to initiate a legal or administrative action

      or if they must be filed or served in a pending action. The number of copies made shall be the number required to be filed and served

      according to the rules of the court or administrative body: one additional copy shall be made for the inmate to keep if the original

      is filed or served. Cases, statutes, and other reference materials are

      not evidentiary materials and will not be copied to accompany legal documents.

   3. Inmates will be charged $0.15 per page for standard legal or letter

      size copies, or if special equipment or paper is required the institution may charge up to the estimated actual cost to the institution of making the copies.

   4. Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there

      is $5.00 or less in his inmate account at the time any copies are made. If an inmate requesting copies has more than $5.00 in his account he shall

      be required to pay for copies furnished him at the rate of $0.15 per

      page until the costs reduce his account to $5.00. Copies for which the inmate is unable to pay shall be provided

      free and the expense will be borne from general operating funds of the

      institution. No attempt will be made to recover such expense from money

      later deposited in the inmate's account.

   5. The librarian may require an inmate for whom copies are to be made to seal the copies, except for his file copy, in envelopes and mail them immediately.

      This requirement, if imposed, shall be explained to the inmate before copies are made.

      Specific Authority 20.315, 945.04, 945.21FS.

      Law Implemented 20.315, 945.04, 945.21 FS. History--New

      
      

6. It was stipulated by the parties that

   the Petitioners have standing to challenge Operating Procedure 78-G-1.

   
   

7. On one occasion, Petitioner Joe Lewis Holland requested copies through Mr. Townsend and Mr. Townsend turned the request over to Classification Officer James C.

   Wolf for processing.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

   
   

9. Petitioners have standing to maintain this proceeding pursuant to Section 120.56, Florida Statutes (1981) The operating procedure establishes the steps that must be taken by each inmate in Baker Correctional Institution in order to obtain copies of legal material. The Petitioners have been and will continue to be substantially affected by Operating Procedure 78-G-1. See Florida Department of Health and Rehabilitative Services v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978) cert. den., 359 So.2d 1215 (Fla. 1978)

   
   

10. Section 120.52, Florida Statutes (1981), of the Administrative Procedure Act (APA) defines a rule as:

    
    

    (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 . . . .

    
    

    Agency statements or directives which constitute rules under this definition but were not formally adopted in accordance with Section 120.54, Florida Statutes (1981), are illicit rules and invalid. Department of Administration v. Stevens,

    344 So.2d 290 (Fla. 1st DCA 1977). It does not matter what descriptor the agency uses to describe or characterize the particular statement. If the statement meets the criteria set forth in Section 120.52(14), it is a rule. Department of Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1978).

11. However, not all utterances or statements of incipient policy of the agency must be made within the strict rulemaking process of Section 120.54. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977)

    . The definition of rules within Section 120.52 (14) includes those statements which are of general applicability and are applied with the force of a rule of law. Department of Administration v. Stevens, supra. If the statements purport in and of themselves to create rights and adversely affect others, if they allow subordinates no discretion in implementation, and if they are prospectively applied and are virtually self-executing, then they are rules and are void unless adopted in accordance with Section 120.54, Florida Statutes (1981).

    McDonald v. Department of Banking and Finance, supra; Department of Commerce v. Mathews Corporation, 358 So.2d 256 (Fla. 1st DCA 1978); Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981)

    
    

12. In the instant case, the Petitioners challenge the validity of Baker Correctional Institution Operating Procedure 78-G-1. More specifically, they challenge that portion of the Operating Procedure which provides "The inmate may make arrangement for copying services by writing his classification specialist." The Petitioners contend that such a requirement is inconsistent with Rule 33- 3.051, Florida Administrative Code and Department of Corrections Policy and Procedure Directive 4.10.51 (rev. May 17, 1983). The petition also alleges that pursuant to this operating procedure the Classification Specialists do not respond to requests within sufficient time for the inmates to meet court deadlines. It is also alleged that the Operating Procedure allows Classification Officers to censor legal material.

    
    

13. In 1983, the Department of Corrections adopted Rule 33-3.051, Florida Administrative Code. That rule is not challenged in these proceedings. That rule mandates that all institutions and facilities shall provide copying services to inmates submitting legal documents and accompanying materials to courts and administrative bodies. The rule designates the type of materials which will be copied and states the price to be paid by the inmate for each copy. This rule clearly contemplates that some employee of the particular institution will be involved in the process of obtaining the copies. That portion of Operating Procedure 78-G-1 which is hereunder challenged does nothing more than designate the person who will receive and answer requests for copies within Baker Correctional Institution. The Operating Procedure grants no more or less authority to the Classification Specialist than that set forth in Rule 33-3.051, Florida Administrative Code. The Classification Specialists are supposed to answer all requests within seven (7) days and have the discretion to expedite copies when a short deadline must be met by the inmate. The evidence did not establish nor does the Operating Procedure on its face permit Classification Officers to censor legal materials. The Operating Procedure merely designates the Baker Correctional Institution employees who are responsible for carrying out the mandate of Rule 33-3.051 within that facility. To the extent that a particular Classification Officer fails to properly carry out this function, the affected inmate may utilize the grievance procedure to obtain redress.

    
    

14. The Baker Correctional Institution Operating Procedure 78-G-1 does not constitute a rule under the criteria discussed above and therefore was not required to be promulgated in accordance with Section 120.54, Florida Statutes. The petition to invalidate Operating Procedure 78-G-1 must therefore be denied.

Based upon the foregoing, it is ORDERED

That petition to invalidate Baker Correctional Institution Operating Procedure 78-G-1 is DENIED.

DONE and ORDERED this 10th day of February, 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

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 10th day of Febuary, 1984.

COPIES FURNISHED:

John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room LL04 Tallahassee, Florida 32301

Robert A. Leeper, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802, The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Douglas L. Adams Curtis Head

Joe Lewis Holland Tommy Green

Baker Correctional Institution Post O. Box 500 F-42

Olustee, Florida 32072

Docket for Case No: 83-003698RX

Orders for Case No: 83-003698RX