STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3748RP

) DEPARTMENT OF CORRECTIONS, STATE ) OF FLORIDA )

)

Respondent. )

)

FINAL ORDER

A formal hearing was held in this 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: Curtis Head, Joe Lewis Holland,

Dennis Neary and Douglas Adams, 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

This case concerns the issue of whether Baker Correctional Institution Operating Procedure 78-0-3, requiring a V-68 series lock is an invalid exercise of delegated legislative authority.

This rule challenge proceeding was initiated by the fIling of a petition to determine the invalidity of a rule on December 5, 1983. By order of assignment, this case was assigned to the undersigned Hearing Officer on December 12, 1983, and the formal hearing was held on January 5, 1984. At the formal hearing, the Petitioners called as witnesses William M. Ellis, Michael R. Odom, and Melvin Davis. Petitioners Dennis Michael Neary, Curtis Head, and Joe Lewis Holland testified on their own behalf. The Petitioners offered and had admitted into evidence Petitioners' Exhibit No. 1 and 2. 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 of fact and conclusions of law are

inconsistent with this order, they are rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. The Petitioners are inmates, who at the time of hearing were incarcerated in Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a prison operated and maintained by the Department of Corrections.

   
   

2. The Superintendent of Baker Correctional Institution has issued Institutional Operating Procedure which provides in part that each inmate may have as a part of his personal property "1 Each Combination Lock (Master V-68 Series) . These locks are used by the inmates to secure their personal storage lockers where authorized valuables and personal property items of the inmate are stored. This operating procedure was first issued on August 1, 1978, and revised April 29, 1983. No evidence was presented as to the provisions contained in the operating procedure prior to its revision on April 29, 1983.

   
   

3. There is no exception to the requirement that the lock be a "Master V-

   68 Series." This lock is required because a master key permits the institution personnel to inspect the contents of an inmate's locker at any time. The Superintendent considers a key lock to be a security problem because it would better enable an inmate to hide a weapon or contraband in his storage locker.

   
   

4. The policy contained in Operating Procedure 78-G-B is based upon the Superintendent's interpretation of those Policy and Procedure Directives listed in the referenQe portion of the operating procedure. That reference section includes:

   
   

   Florida Statutes, Chapters 20.315, 915.23,

   944.09, 944.081 and 945.21

   Department of Corrections Policy and Procedure Directive No. 3.01.01, 3.01.04 and 3.04.07

   
   

   These Policy and Procedure Directives have not been promulgated as rules and are not contained in the Florida Administrative Code. The numbers assigned to these directives do not comport with the rules of the Department of State. These policy and procedure directives were not offered into evidence or made a part of the record by either party.

   
   

5. The superintendent relied upon those statutory sections contained in the reference section as his authority for issuing the challenged operating procedure.

   
   

6. Under Operating Procedure 78-G-3, inmates who transferred to Baker Correctional Institution who owned another type of lock were not allowed to keep the lock and were required to purchase a "Master V-68" type lock. If the inmate did not have sufficient funds to purchase such a lock, he was required to either leave his personal property with an institutional employee or keep it in his storage locker without a lock.

   
   

7. Petitioner Joe Lewis Holland had a master keyed lock when he arrived at Baker Correctional. This lock is now being held by the property and receiving officer. When Petitioner Dennis Michael Neary arrived at Baker Correctional, he had a V-64 type combination lock. Petitioner Neary purchased his lock while an inmate at Cross City Correctional Institution. Cross City Correctional permits

   inmates to keep the locks they have when they arrive at that facility. As a result of not having a lock, some of Mr. Neary's personal property was stolen from his storage locker. Approximately December 10, 1983, after his property was stolen, Petitioner Neary received a V-68 type lock on loan from the institution. He had to return that lock no later than January 10, 1984. Mr. Neary has no living relatives to whom his unauthorized personal property can be sent.

   
   

8. The policy of loaning locks to new arrivals is a new policy adopted in December, 1983. The Operating Procedure 73-G-3 had not at the time of hearing been revised to permit such a loan. Under this new policy, an inmate who does not have enough money to purchase a V-68 type lock will be loaned a V-68 type lock until he has earned enough to buy one or until the end of 30 days, whichever is shorter. The cost of the V-63 type lock is approximately $4.00.

   
   

9. Petitioner Curtis Head arrived at Baker Correctional Institution on September 23, 1983. Upon arrival, he did not have a V-68 type lock and had to leave his valuable and personal property with the property and receiving officer for the two weeks it took him to obtain a V-68 type lock.

   
   

10. The Master keyed lock belonging to Petitioner Holland was purchased by him while he was an inmate at Union Correctional Institution. He purchased the lock for $4.65. He was without a lock for 1 1/2 months after he arrived at Baker Correctional Institution.

    
    

11. The locks that are being held by the property and receiving officer are held for a period of 30 days. If the inmate has not made arrangements to send the lock and any property held to a relative or friend within the 30 days, then the property is disposed of by the institution.

    
    

12. When an inmate arrives at Baker Correctional Institution, the property and receiving officer inventories all the inmate's personal property. All unauthorized items such as a non V-8 type lock are not permitted Inside the facility.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. 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 78-0-1. 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)

    
    

15. 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).

    
    

16. 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. Matthews Corporation, 358 So.2d 256 (Fla. 1st DCA 1978); Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981).

    
    

17. The Respondent contends that the challenged operating procedure is not a rule because it is not a statement of general applicability. This argument is based upon the fact that the operating procedure applies only to those inmates incarcerated at Baker Correctional Institution. This argument is rejected. The geographical limitations of an agency statement are certainly a factor to be considered but are not conclusive in the determination of whether such a statement is or is not a rule. See Department of Commerce v. Matthews Corporation, supra. An agency statement need not apply to all citizens of Florida in order to be a statement of general applicability qualifying it as a rule. See Florida State University v. Dann, supra. See also, Sumaer v. Department of Corrections, D.O.A.H. Case No. 82-676R, 4 FALR 1198-A, 1199-A (1983) and Adams v. Department of Corrections, D.O.A.H. Case No. 83-1022R, FALR (1983). Operating procedure 78-G-3 applies to all inmates of Baker Correctional Institution.

    
    

18. Respondent also contends that Operating Procedure 78-G-3 is an "internal management memorandum" and thus an exception to the definition of rule contained in Section 120.52 (14), Florida Statutes (1983). However, in order to qualify as an "internal management memorandum" a statement must not affect "the private interest of any person." Section 120.52 (14)(a), Florida Statutes (1983). The operating procedure in the instant case clearly affects the private interests of those inmates who must purchase a V-68 type lock or be exposed to potential loss of personal property as a result of having no lock to secure their storage locker. This impact on private persons disqualifies Operating Procedure 78-G-3 as an internal management memorandum.

    
    

19. That portion of the Baker Correctional Institution Operating Procedure relating to disposition of unauthorized personal property is nothing more than a reiteration of Rule 33-3.025(4)(6) and is therefore not a rule and subject to the requirements of Section 120.54, Florida Statutes.

20. Operating Procedure 78-G-3 is a limitation on items of personal property which an inmate is permitted to bring into Baker Correctional Institution. It has a direct and in some instances an adverse impact on the ability of an inmate transferred to Baker Correctional from another facility to secure valuables and those items of personal property the inmate is authorized to bring into the facility. Its provisions are virtually self-executing and the property and receiving officer who is responsible for its enforcement is given no discretion in implementing its requirements. The procedure is prospectively applied to all inmates entering Baker Correctional. In those instances where an inmate is unable to purchase a V-68 type lock the operating procedure adversely affects that inmates right to possess and secure his personal property. The challenged Operating Procedure is a rule within the meaning of Section 120.52(14), Florida Statutes (1983). Although it has the effect of a rule, it was not adopted in accordance with Section 120.54, Florida Statutes. Affected persons were not given prior notice or an opportunity to submit written comments. The legislature expressly recognized the right of prisoners to participate in the rulemaking process in Section 120.54(3), Florida Statutes.

    
    

21. The legislature authorized the Department of Corrections to adopt regulations relating to or necessary for the efficient operation and management of the correctional system. Section 945.21(1)(n), Florida Statutes (1983). However, the legislature also expressly required that such regulations "shall be adopted and filed with the Department of State as provided in Chapter 120." Section 945.21(2), Florida Statutes (1983). The Department of Corrections has by rule delegated to the superintendent of an institution the authority to issue "Institutional Operating Procedures, consistent with Rules, Directives, and Regional Operating Procedures, applicable to operations within the institution." Rule 33-1.07(3), Florida Administrative Code. However, in that same rule, the Department recognizing the mandate of the legislature provided:

    
    

    (4) Any material contained in such Directives and Operating Procedures that meets the definition of 'rule' contained in Section 120.52(14), F.E., shall be promulgated as a rule of

    the Department, unless specifically exempted by Florida Statute.

    
    

    The Respondent has then by its own rule acknowledged that institutional operating procedures will at times constitute a rule and thus require compliance with Section 120.54, Florida Statutes. The present case is one of those instances.

    
    

22. It is admirable that the Superintendent initiated the loan policy to alleviate the problem experienced by inmates unable to purchase locks on entering Baker Correctional. However, this new policy occurred after the filing of this rule challenge and after at least one of the Petitioners had a part of his personal propertv stolen. One of the purposes of the rulemaking procedure prescribed in Section 120.54, Florida Statutes, is to give the agency the benefit of input from the affected persons before they are exposed to the effects of the rule.

    
    

23. The courts have held that in marginal administrative rule challenges under Section 120.56, the public interest is better served by permitting rulemaking incentives to operate in Section 120.57 proceedings. See Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association,

400 So.2d 1302 (Fla. 1st DCA 1981) and Department of Corrections v. McCain Sales

of Florida, Inc., 400 So.2d 1301 (Fla. 1st DCA 1981). However, the incentive to rulemaking and policies underlying such holdings are absent in the state correctional system because inmates may not participate in Section 120.57 proceedings. Section 120.52(10)(d), Florida Statutes (1983).

Based on the foregoing it is ORDERED:

That Baker Correctional Operating Procedure 78-G-3, as it specifically relates to Master V-68 Series locks is an invalid exercise of delegated legislative authority.

DONE and ORDERED this 14th 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 14th day of February, 1984.

COPIES FURNISHED:

Curtis Head, Joe Lewis Holland, Dennis Neary and Douglas L. Adams Post Office Box 500 F-42

Olustee, Florida 32072

Louis A. Vargas, ESquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

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

Docket for Case No: 83-003748RX

Orders for Case No: 83-003748RX