STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL R. LAYTON, )

)

Petitioner, )

)

v. ) CASE NO. 84-0006RX

) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )

)

Respondent. )

)

)

FINAL ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 16, 1984, in Tomoka Correctional Institution, Daytona Beach, Florida.

APPEARANCES

For Petitioner: Paul R. Layton, pro se

Route 8, Box 200 Indian Lake Road

Daytona Beach, Florida 32014

For Respondent: Kevin J. O'Donnell, Legal Intern

Department of Legal Affairs 1601, The Capitol

Tallahassee, Florida 32301 ISSUES AND BACKGROUND

This case arises out of a challenge by the Petitioner to the validity of Rule 33-3.02(6), Florida Administrative Code. Petitioner specifically attacks that portion of the rule relating to the requirement that a prisoner's hair be properly cut in good taste and that a prisoner be clean shaven. At the formal hearing, the Petitioner testified on his own behalf and offered no exhibits into evidence. Respondent called as its only witness, Mr. David E. Watson, who was accepted and testified as an expert in institutional security and administration. Respondent offered and had one exhibit admitted into evidence.

Subsequent to the formal hearing, the Petitioner and 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 were rejected as being unsupported by the evidence or an unnecessary to a resolution of this cause.

FINDINGS OF FACT

1. The Petitioner, Paul R. Layton, is an inmate presently confined at the Tomoka Correctional Institution, Daytona Beach, Florida.

   
   

2. Given a choice the Petitioner would not wear his hair any longer than his collar. His personal feeling, however, is that the rule is used as a harassment technique and is used to dehumanize and institutionalize the prisoners.

   
   

3. The Respondent's rationale for the rule is that requiring prisoners to keep their hair short aids in identification of the individual prisoners within the institution and in the event of an escape. Prisoners have attempted escapes by altering their appearance. The Department of Corrections, pursuant to the challenged rule, has required prisoners to cut their hair such that it is above their collar and off of their ears. The Department houses approximately 27,000 inmates, all of whom are required to wear similar uniforms.

   
   

4. When a prisoner escapes, the Department of Corrections must provide a current photograph of the escaped prisoner to law enforcement agencies. Requiring short standardized haircuts substantially reduces the cost and difficulty such current photographs.

   
   

5. Petitioner contended that the rule is discriminatory in that female inmates are not subjected to the same haircut standards. The majority of female inmates wear their hair long and when they change the length of their hairs they are rephotographed.

   
   

6. Shorter hair is more sanitary for those prisoners who are involved in food preparation. Long hair can also constitute a safety hazard for those inmates who operate machinery.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The Petitioner has standing to maintain this proceeding pursuant to Section 120.56, Florida Statutes (1983). The Petitioner has been and will continue to be substantially affected by the challenged rule. See Florida Department of Health and Rehabilitative Services v. Jerry, 353 So.2d 123 (Fla. 1st DCA 1978) cert. den., 359 So.2d 1215 (Fla. 1978); Department of Corrections

   v. Sumner, 447 So. 2d 1388 (Fla. 1st DCA 1984).

   
   

9. The Petitioner challenges the validity of Rule 33.02(6) which provides:

   
   

   Inmates shall be issued sufficient clothing, including outer clothing, underwear, socks, and shoes. Each inmate may be required to bathe at least one time a day, and make a change of outer clothing at least twice a week. Inmates shall be required to have their hair cut

   properly, within good taste, and they must be clean shave. Inmates shall be furnished sufficient clothing during cold weather to insure adequate warmth.

   
   

   Petitioner, in his petition, specifically challenged that portion of the rule requiring that he be clean shaven and that his hair be cut properly and within good taste. No evidence was presented by the Petitioner relating to the clean shaven requirement.

   
   

10. Petitioner contends that the challenged rule is an invalid exercise of delegated legislative authority. He also attacks the rule as being unconstitutional with no basis except to harass and disfigure inmates. The attack upon the rule on constitutional grounds is not appropriate for 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).

    
    

11. The Respondent cites as its authority for the challenged rule, Sections 944.09 and 945.21, Florida Statutes. Those sections provide in relevant part:

    
    

    1. All persons committed to the department shall be supervised by it.

    2. 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.

       1. The rights of inmates.

       2. The rules of conduct to be observed by inmates and the categories of violations according to degrees of 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 of facility and its personnel and functions.

       * * *

    3. Regulations of the department shall be adopted and filed with the Department of State as provided in chapter 120.

    4. 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).

       1. 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.

       2. Regulations of the department shall be adopted and filed with the Department of State as provided in chapter 120. Section 845.21, Florida Statutes (1983).

       
       

12. In attacking an agency rule as arbitrary 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. Wynnn, 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.

    
    

13. In the instant case, the Petitioner has failed to establish by competent evidence that the challenged rule is without reason or logic. The rule clearly falls within those areas in which the Department of Corrections may regulation and promulgate rules. See Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970) Brown v. Wainwright, 419 F.2d 1376 (5th Cir. 1970). Upon the evidence presented in this case, it cannot be concluded that the rule is either arbitrary or capricious.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is concluded that the Petitioner has failed to establish that Rule 33-3.02(6), Florida Administrative Code, is an invalid exercise of delegated legislative authority and therefore his petition is hereby DISMISSED.

DONE AND ORDERED this 12th day of June 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 12th day of June, 1984.

COPIES FURNISHED:

Kevin J. O'Donnell, Legal Intern Department of Legal Affairs 1691, The Capitol

Tallahassee, Florida 32301

Paul R. Layton Route 8, Box 200 Indian Lake Road

Daytona Beach, Florida 32014

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louie L. Wainwright, Secretary 1311 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-000006RX

Orders for Case No: 84-000006RX