JOSEPH REDMAN, NYADZI D. RUFU, )
S. B. RIDLEY and JIMMY L. ROGERS, )
vs. ) CASE NO. 83-3889RX
Respondent. )
A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 17, 1984, at Union Correctional Institution, Raiford, Florida.
For Petitioners: Joseph Redman, Nyadzi D. Rufu,
and Jimmy L. Rogers, pro se Union Correctional Institution Raiford, Florida 32083
For Respondent: William D. Hall, Jr.
Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1501 Tallahassee, Florida 32301
This case arises out of a challenge by the Petitioners to the validity of Rule 33-3.02(6), Florida Administrative Code; Policy and Procedure Directive 2.02.13, and Union Correctional Institution Operating Procedure No. 81-82. The Petitioners specifically challenge the validity of those portions of the above- provisions relating to the issue of clothing to the inmates. At the final hearing, Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers, testified on their own behalf and also called as witnesses Charles Connors and Paul Gunning. Petitioners offered and had admitted into evidence five exhibits. Respondents called no witnesses and offered no exhibits into evidence. The Petitioner S. B. Ridley, did not appear at the formal hearing. The Hearing Officer was informed by one of the other Petitioners at the formal hearing that Mr. Ridley had been transferred to Polk Correctional Institution. Mr. Ridley was given due notice of the hearing held on February 17, 1984, and has filed no pleading or motion with the undersigned Hearing Officer seeking either a continuance or other relief.
The 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 this order, they were rejected as unsupported by the evidence or as unnecessary to a resolution of this cause.
The Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers are inmates incarcerated at Union Correctional Institution, Raiford, Florida.
On November 5, 1982, as Petitioner Rogers was being released from disciplinary confinement, he entered the laundry to obtain another pair of state issued pants, socks and underwear. The name tag was coming off of his jacket and because of this it was confiscated. He asked for another jacket and was told he could not be issued one. He was eventually issued another jacket which was also confiscated. For a period of time, Petitioner Rogers had no jacket for those times when he was required to walk and be outside in the cold.
The laundry manager at Union Correctional Institution is responsible for the issue of all clothing to the prisoners. The manager follows Union Correctional Institution Operating Procedure 81-82 in issuing clothing an Union Correctional Institution. That operating procedure provides in relevant part:
81-82.1 Purpose
This memorandum is published as a guide in the issuance of inmate clothing, and the providing of laundry facilities for the inmate population.
81-82.2 Authority
Florida Statutes 945.21, 944.09 section 20.315
Department of Corrections Administrative Rules, Chapter 33-3.02(6).
81-82.3 Clothing Issue
Each inmate shall be issued the following clothing items:
3 each Blue Shirts
3 pairs Blue Trousers
1 each Web Belt
1 pair Boxer Shorts
1 pair Socks
1 pair Shoes, High Top.
Inmates assigned to the Food Service Departments and Canteens shall be issued one additional suit of clothing because of their having to work on Sundays, enabling them to change clothing daily.
81-82.6 Special Issue
Inmate Jackets are issued in October of each year and picked up for storage in April. An inmate may have his jacket laundered on any Friday.
Hats, caps, and other special clothing items are issued to the Department Supervisor for distribution to the work squad. The Supervisor is responsible for those items of issue.
81-82.7 Miscellaneous Information
The Laundry Manager/Clothing Officer shall maintain a record of the various clothing items issued to each inmate. If clothing issue is abused, either through neglect or by intent, the officer will initiate appropriate action.
The official inmate uniform throughout the institution is issue blue shirt and trousers. Inmates assigned to the following areas are issued white shirts and trousers in lieu of the regular blue uniform:
Food Service
Administration Building Workers Main Gate Workers
Utility Man on each Close Supervision Squad (For Identification)
Canteen Workers.
Each inmate who turns in a jacket (at the end of winter) shall be issued a pair of hemmed walking shorts for wearing on the athletic field or after hours in the housing area.
The manager was not aware of and has not utilized Policy and Procedure Directive 2.02.13, in issuing clothing at Union Correctional Institution. That policy and procedure directive provides in relevant part:
AUTHORITY:
Section 20.315, 944.09 and 945.21, Florida Statutes
Department of Corrections, Administrative Rules, Chapter 33-3.02(6)
PURPOSE:
The purpose of this Directive is to establish a uniform procedure for issuing inmate clothing and linens. This will enable the Department to
control the costs of clothing and linens in a more economical manner.
GENERAL:
Appropriate internal measures will be taken by each operating location to implement the provisions of this Directive. It is the Department's expressed intent that all inmate clothing be appropriately fitted
and suited for the environment and that Departmental facilities provide sufficient laundering facilities to ensure that appropriate health
standards are maintained. The clothing and linen will be exchanged on a one for one basis after the initial issue.
Should an inmate intentionally damage
or destroy his/her uniforms, appropriate action should be taken by the Superintendent to reimburse the State, if possible. It is imperative that
the custodial staff be well informed of the provisions of this Directive and any exceptions or deviations from this Policy set forth will have to be approved by the Regional Director.
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 and linen issued to
him.
Maximum Clothing Issue - Blues and Whites Items Quantity
Shirts 3 for 5 day post
5 for 7 day post
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
Regions III, IV and V may substitute two sweatshirts for two pairs of long underwear for winter use.
E. Clothing - Special
Items such as food service linens, coverall's 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.
Only those inmates who work outside for eight hours each day are issued long underwear during the winter months. The inmates do not go outside when the temperature is below 40 degrees. The laundry does not issue raincoats to the inmates. The raincoats are under industry inventory and each department can draw raincoats out of that inventory. The raincoats are paid for by the department drawing them out and the work supervisor from that department issues them to the inmates. Raincoats are sold in the canteen at Union Correctional Institution.
The laundry stocks long underwear but no longer stocks T-shirts. The laundry does not stock sweatshirts. There are two types of blue uniforms. The laundry issues coveralls to special jobs but no coveralls are issued to inmates personally. It is within the laundry manager's discretion as to when he issues new clothing as opposed to used clothing. It is the laundry manager's responsibility to remain within his budget for the year.
T-shirts are not included in the list of clothing issue items in Union Correctional Institution Operating Procedure 81-82. This may be due in part to
budget restrictions. T-shirts are included in the "maximum clothing issue" list in Policy and Procedure Directive 2.02.13.
Practically every inmate in Union Correctional Institution is required to go outside in order to go to work or to school. The inmates must also go outside in order to go to the chow hall or the clinic. The west unit is approximately a 4 or 5 minute walk from the chow hall.
Union Correctional Institution Operating Procedure No. 81-82 is signed and issued by the Superintendent of UCI and cites as its authority Florida Statutes 945.21, 944.09, Section 20.315, and Rule 3303.02(6), Florida Administrative Code. The Respondent has not contested the fact that the operating procedure was not promulgated in accordance with the requirements of Section 120.54, Florida Statutes. There was no evidence presented as to the procedures followed in adopting the Policy and Procedure Directive 2.02.13.
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. The Petitioners, as inmates at Union Correctional Institution, have been and will continue to be affected by Rule 33- 3.02(6), Florida Administrative Code, Policy and Procedure Directive 2.02.13, and Union Correctional Institution, Institutional Operating Procedure 81-82.
See Florida Department of Health and Rehabilitative Services v. Jerry, 353 So. 2d 1230 (La. 1st DCA 1978); cert. denied, 359 So. 2d 1215 (Fla. 1978); Department of Corrections v. Sumner, 447 So. 2d 1388 (Fla. 1st DCA 1984).
The Petitioners contend that Rule 33-3.02(6), Florida Administrative Code, Policy and Procedure Directive 2.02.13, and Union Correctional Institution, Institutional Operating Procedure 81-82 are arbitrary and capricious and are therefore invalid exercises of delegated legislative authority. During the course of the formal hearing, the Petitioners also attacked the rule, directive, and operating procedure as unconstitutionally vague. To the extent that these provisions constitute existing rules, a constitutional challenge may not be made in this forum. The power to adjudicate that an existing rule is unconstitutional is a judicial power and such adjudication may not be made by an administrative officer or agency. State, Department of Administration v. Division of Administrative Hearings, 326 So. 2d
187 (Fla. 1st DCA 1976); State, Department of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977); Cook v. Florida Probation and Parole Commission, 415 So. 2d 845 (Fla. 1st DCA 1982).
The initial issue to be considered in this proceeding is whether Union Correctional Institution Operating Procedure and the Policy and Procedure Directive 2.02.13 are rules within the meaning of Section 120.52, Florida Statutes. 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).
However, not all utterances or statements of incipient policy of the agency must be made within the strict rule-making process of Section 120.54. McDonald v. Department of Banking and Finance, 346 So.2d 569 (F1a. 1st DCA 1977). The definition of rules within Section 120.52(14) include 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).
Union Correctional Institution Operating Procedure 81-82 cites as part of its authority Rule 33-3.02(6), Florida Administrative Code. 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.
This same rule is cited as part of the authority for issuance of Policy and Procedure Directive 2.02.13.
Union Correctional Institution Operating Procedure 81-82 designates the type and quantity of clothing which the laundry manager at Union Correctional Institution can issue to each inmate. It designates the time period during which jackets will be issued. It also states what the official inmate uniform in Union Correctional Institution will be and lists the work areas where inmates will be issued white shirts and trousers in lieu of the regular blue uniform. The only discretion given the laundry manager is whether to issue new or used clothing to a particular individual. This operating procedure in and of itself determines what is "sufficient clothing" and also determines without exception who will receive this clothing and the type and quantity of clothing they will receive.
Policy and Procedure Directive 2.02.13 lists the maximum clothing issue which each male inmate may be issued. It permits substitution of personal clothing or the issuance of less than the maximum quantities of clothing where appropriate. It also provides that long underwear will be issued only during the winter and only for outside details. Union Correctional Institution
interprets "outside details" to mean those details which require an inmate to work outside eight hours per day.
Both the Policy and Procedure Directive 2.02.13 and the Union Correctional Operating Procedure 81-82 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 the issuance of clothing, are "rules" within the definition of Section 120.52(14). The Union Correctional Institutional Operating Procedure 81-82 was not promulgated as such in accordance with Section 120.54, Florida Statutes. It is therefore an invalid exercise of delegated legislative authority. It could not be determined from the evidence in this case whether Policy and Procedure Directive 2.02.13 was or was not promulgated in accordance with Section 120.54. However, it should be noted that the same policy and procedure directive as it relates to issuance of winter clothing including long underwear has previously been declared invalid in Holland et al v. Department of Corrections. D.O.A.H. Case No. 83-3701R (Final Order filed March 7, 1984).
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 Rule 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.S., 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.
Petitioners have also by this action challenged the validity of Rule 33-3.02(6). Sections 944.09 and 945.21, Florida Statutes, are the cited authorities for Rule 33-3.02 (6) and provide in relevant part:
All persons committed to the department shall be supervised by it.
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 or relate to:
The rights of inmates.
The rules of conduct to be observed by
inmates and the categories of violations according to degrees or levels of severity as well as the degrees of punishment
applicable and appropriate to such violations.
* * *
(e) The operation and management of the correctional institution or facility and its personnel and functions.
* * *
Regulations of the department shall be adopted and filed with the Department of State as provided in chapter 120.
It shall be the duty of the superintendents to supervise the government, discipline, and policy of the state correctional institutions and to enforce all orders, rules, and regulations. . .
Section 944.09, Florida Statutes (1983)
The department shall promulgate regulations governing the administration of the correctional system and the operation of the department. In addition to specific subjects otherwise provided for herein, the regulations of the department may relate to:
(a) Conduct to be observed by prisoners.
* * *
(n) Such other regulations as in the opinion of the department may be necessary for the efficient operation and management of the correctional system.
Regulations of the department shall be adopted and filed with the Department of State as provide in chapter 120.
Section 945.21, Florida Statutes (1983).
In attacking an agency rule as arbitrary or capricious or an abuse of discretion, the challenger has the burden of proof and that burden is a stringent one, indeed. Agrico Chemical Co. v. State of Florida Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979). Cert. denied 376 So.2d 74 (Fla. 1979). The courts have provided guidance for the review of such challenges by defining the terms arbitrary and capricious as they relate to adoption of administrative rules:
A capricious action is one which is taken without thought or reason
or irrationally. An arbitrary decision is one not supported by facts or logic or despotic.
Administrative discretion must be reasoned and based upon competent substantial evidence.
Competent substantial evidence has been described as such evidence as a reasonable person would accept as
adequate to support a conclusion. Id. at 763.
Rule making by an agency is quasi-legislative action and must be considered with deference to that function. Florida Beverage Corporation v. Wynn, 306 So. 2d
200 (Fla. 1st DCA 1975). Given a proposed rule within an area of regulation delegated by the legislature to an agency, the test for arbitrariness is the same for the proposed rule as it would be for a statute having the same effect. Florida Citrus Commission v. Owens, 239 So. 2d 840, 848 (Fla. 4th DCA 1979), cert. denied, 242 So. 2d 873 (Fla. 1971). Agrico Chemical Co. v. State of Florida, Department of Environmental Regulation, supra at 762.
In the instant case the Petitioners have failed to establish that Rule 33-3.02(6), Florida Administrative Code, is either arbitrary or capricious or that it does not reasonably relate to the purpose of the statutes it purports to implement.
2.02.13 and Rule 33.3.02(6), Florida Administrative Code, are invalid exercises of delegated legislative authority and therefore the petition as to those two provisions is DISMISSED.
DONE AND ORDERED this 12 day of June 1984, in Tallahassee, Florida.
MARVIN E. CHAVIS
Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1984.
William D. Hall, Jr. Assistant Attorney General Department of Legal Affairs
P.O. Box 221
Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard
Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard
