Ellis, G. L. Martin, and Michael L. Odom. Petitioner Richard Chadock testified on his own behalf. Petitioners offered and had admitted into evidence four exhibits and were permitted to file a late filed exhibit which was the most recent copy of the Baker Institutional Operating Procedure No. 78-G-14. The Respondent presented no evidence.
Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions contained in this order, they were rejected as not supported by the evidence or as unnecessary to the resolution of this cause.
The Petitioners are inmates who at the time of hearing were Incarcerated in Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a prison facility operated by the Florida Department of Corrections.
The Superintendent of Baker Correctional Institution has issued an Institutional Operating Procedure No. 78-G-14, titled, "Inmate Clothing & Laundry Procedures." This operating procedure was originally issued on August 1, 1978, and last revised December 21, 1983. That operating procedure provides in relevant part:
III. STANDARD CLOTHING ISSUE
D. Winter Clothing Issue
Winter clothing will be issued during the period of October 15th through April 15th and will be turned in on April 15th.
The maximum amount of winter clothing Is as follows:
1 denim jacket, standard issue for all inmates.
1 gray sweatshirt issued to inmates assigned to the maintenance department and warehouse.
2 suits of thermal weave under- wear to inmates assigned to outside work details.
XIII. MEDICAL RELATED CLOTHING NEEDS Inmate clothing related to special medical needs will be issued only upon receipt of a medical prescription issued by the Chief Medical Officer.
The authority relied upon by the superintendent in issuing Operating Procedure 78-G-14 is set forth in the reference portion of that operating procedure as:
Florida Statutes, Chapter 20.315, 944.09, and
945.21
Department of Corrections Rules, Chapter 33-3.02(6)
Department of Corrections Policy and Procedure Directive No. 2.02.13 and 4.07.20, VIII(B)
The operating procedure is reviewed annually by the superintendent. The operating procedure was not promulgated as a rule in accordance with the requirements of Florida Statute 120.54.
The Department of Corrections has issued a Policy and Procedure Directive No. 2.02.13 titled, "Inmate Clothing and Linen Policy." That directive was issued on January 25, 1979, and revised on January 18, 1983. That directive provides in relevant part:
IV. STANDARD CLOTHING ISSUE (MALE): Each male inmate may be issued
the items of clothing and linen specified below. The phrase "Maximum Clothing Issue" is used in this Directive to permit the substitution of personal clothing or to permit the issuance of less than maximum quantities where appropriate. Unless otherwise
designated, the inmate will not have excess clothing and linens in his possession. Each inmate will be responsible for the clothing end linen issued to him.
Maximum Clothing Issue - Blues and Whites ITEMS QUANTITY
Shirts 3 for 5 day post
5 for 7 day post
Pants 3 for 5 day post
5 for 7 day post
Maximum Clothing Issue - Other Items ITEMS QUANTITY
Undershorts 3 pairs
Undershirts/T shirts 3
Socks 2 pairs
(changed daily)
Belt with Buckle 1
Shoes 1 pair
Jacket (winter only) 1
Long underwear (winter only for outside detail) 2 pairs
Regions III, IV and V may substitute two sweatshirts for two pairs of long under- wear for winter use.
E. Clothing Special
Items such as food service linens, coveralls aprons, cooks' caps, gloves, rubber boots, raincoats, athletic uniforms, barber and butcher jackets, straw hats and safety helmets shall be considered tools of the trade and will be issued directly to the department requiring them. The superintendent will,
on recommendation and justification by department head, determine what items are to be purchased and issued to inmate.
All items issued on a departmental basis that can be appropriately marked shall have the standardized department initials stenciled on the item. It will be
the responsibility of the superintendent to establish a laundry schedule for these items.
This policy and procedure directive has not been promulgated as a rule. It is not published in the Florida Administrative Code and does not bear a numerical designation that accords with the rules of the Department of State.
Both Operating Procedure 78-G-14 and the Policy and Procedure Directive No. 2.02.13 cite Rule 33-3.02(6), Florida Administrative Code, as one of the authorities authorizing their issuance. That rule provides in relevant part:
Inmates shall be issued sufficient clothing, including outer clothing, underwear, socks and shoes. Inmates
shall be furnished sufficient clothing during cold weather to insure adequate warmth.
Under Rule 33-3.045, Florida Administrative Code, the "Package Permit Form for Male Institutions," form DC3-302M, is incorporated by reference. An inmate may receive a package from someone outside the facility only by obtaining a package permit. The package permit does not allow the prisoner to receive thermal weave underwear. Inmates possessing thermal weave underwear when transferred to Baker Correctional are not allowed to keep them.
If it is not inclement weather, inmates are required to go outside from 8:00 a.m. to 10:00 a.m. and from 1:00 p.m. to 3:00 p.m. Inmates do not go out on outside work assignment if the temperature is below 40 degrees or if it is raining.
Clothing such as thermal weave underwear and sweatshirts are issued by the laundry. Only those inmates assigned to permanent outside details are issued thermal weave underwear. Inmates assigned to the warehouse and maintenance are issued sweatshirts. No other inmates are issued thermal weave underwear or sweatshirts. Prisoners can receive sweatshirts pursuant to a package permit. Inmates are not issued raincoats. Raincoats can be received by the inmates through a package permit.
Prior to a complaint being filed by Petitioner Joe Richardson, the manager of the laundry issued thermal weave underwear to the inmates assigned to the laundry. These individuals are required to go back and forth from the laundry to the dorms throughout the day. The laundry manager considered this an outside detail. After being informed by his supervisor, Mr. Townsend, that this was not considered an outside detail the laundry manager confiscated the thermal weave underwear from the laundry workers. The manager of the laundry is allowed to deviate from the Operating Procedure 78-G-14 only if he first obtains permission from his supervisors.
If the medical department states that an inmate is ill and needs additional clothing, the additional clothing such as thermal weave underwear will be issued to the inmate. The superintendent did not recall any instance where additional clothing had been issued under this unwritten policy.
Because of the length of the line and the lack of a large enough shelter outside the entrance to the dining hall, inmates are required on occasion to stand in the rain and cold weather outside the dining hall. The dormitories are released at different times in order to avoid this problem. However, this does not totally eliminate the occurrence of long lines waiting outside the dining hall.
Petitioners Joe Richardson and Richard Chadock have requested thermal weave underwear because of the cold weather. These requests were denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Petitioners have standing to maintain this proceeding pursuant to Section 120.56, Florida Statutes (1981). The Petitioners have been and will continue to be substantially affected by Operating Procedure 78-G-14. 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)
Section 120.52, Florida Statutes (1981), of the Administrative Procedure Act (APA) defines a rule as:
(14) 'Rule' means that each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the requirements of an agency and includes any form which imposes any
requirement or solicits any information IL' 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 Administrative v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1978).
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 selfexecuting, 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. Matthews Corporation, 358 So.2d 256 (Fla. 1st DCA 1978); Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981)
Section 945.21(d), Florida Statutes, authorizes the Department of Corrections to promulgate regulations relating to uniforms for inmates. That same section authorizes the Department to promulgate "such other regulations as in the opinion of the department may be necessary for the efficient operation and management of the correctional system. Section 945.21(n), Florida Statutes (1983). Pursuant to this authorization,the Respondent has promulgated Rule 33- 3.02(6), Florida Administrative Code, which provides in relevant part:
Inmates shall be issued sufficient clothing, including outer clothing, underwear, socks, and shoes....
Inmates shall be furnished sufficient clothing during cold weather to insure adequate warmth.
Pursuant to this rule, the Department of Corrections has issued Policy and Procedure Directive No. 2.02.13 which provides that long underwear will be issued in winter for outside detail only. No definition for outside detail is provided. Thus the discretion as to what is or is not an outside detail as well as the time period designated as "winter" is left to the person responsible for issuing such clothing.
Other than "jackets," Directive No. 2.02.13 makes no other designation of winter clothing.
Institutional Operating Procedure 78-G-14 provides the time period during which winter clothing will be issued at Baker Correctional. It also designates jackets, gray sweatshirts, and thermal weave underwear as the winter clothing to be issued. Operating Procedure 78-G-14 limits the issuance of gray sweatshirts to inmates assigned to the maintenance department and warehouse and limits issuance of thermal weave underwear to those inmates assigned to outside work details. There is no discretion given to the laundry manager as to when or to whom winter clothing will be issued. This operating procedure in and of itself determines what is "sufficient clothing" and also determines without exception who will receive this clothing.
Both the Policy and Procedure Directive 2.02.13 and the Operating Procedure 78-G-14 purport in and of themselves to create rights and adversely affect others. Under this and the other criteria discussed above,these two Statements as they relate to winter clothing, are "rules" within the definition of Section 120.52(14) and were not promulgated as such in accordance with Section 120.54, Florida Statutes. They are therefore invalid exercises of delegated legislative authority.
Petitioners' attack upon the inability to receive thermal weave underwear on package permits must fail. This policy is established through a standardized statewide form and has been adopted as a part of Rule 33-1.05, Florida Administrative Code. That rule is not under attack in those proceedings.
