STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE LEWIS HOLLAND and )

DOUGLAS LAVERNE ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0397RX

)

DEPARTMENT of CORRECTIONS )

)

Respondent. )

)

FINAL ORDER

This matter came on for final hearing at the Union Correctional Institution in Raiford, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on March 12, 1984.

Petitioners appeared on their own behalf, unrepresented by counsel. Respondent appeared through Kevin O'Donnell, a legal intern under the supervision of Randall A. Holland, Esquire, Room 1601, The Capitol, Tallahassee, Florida, 32301. The parties waived the time for entry of final order. Respondent's proposed findings of fact, conclusion of law and final order were filed on March 27, 1984. Petitioners' proposed findings of facts and conclusions of law were filed on April 9, 1984.

These proceedings began with the filing of a petition to determine the invalidity of a rule in which petitioners challenge Rule 33-3.06(5)(b), Florida Administrative Code, Union Correctional Institution'S Operating procedure No.

1. (IOP 81-6) and Regional Operating procedure No. 6. At hearing, petitioners abandoned the challenge t.Regional Operating procedure No. 6.

   
   

   ISSUE

   
   

   Whether respondent had the substantive, statutory authority to adopt Rule 33-3.06(5)(b), Florida Administrative Code, or IOP 81-6, and whether, in any event, IOP 81-6 was promulgated in accordance with the procedures prescribed by statute?

   
   

   FINDINGS OF FACT

   
   

   1. At the final hearing, the parties stipulated that the petitioners have standing to challenge Rule 33-3.06(5)(b) Florida Administrative Code and IOP 81- 6; that currency belonging to both petitioners had in fact been converted to coupons pursuant to the "rules" under challenge; and that torn and loose coupons will not be redeemed. The parties also stipulated to the following allegations of the petition:

      
      

      1. Petitioners' [sic] are incarcerated citizens of the State [o]f Florida and their substantial interest is substantially "affected" by policies and rules of the

         Respondent depriving them of monies systematically through coupon instead of cash to the disadvantage of petitioners.

      2. Respondent ha[s] promulgated a rule in Florida Administrative Code (FAC) which allow[s] superintendents' [sic] to convert cash, postal money orders and certified checks into coupons in the place of United States currency. The rule is attached hereto as exhibit "A", Chapter 33-3.06(5) (b), FAC, incorporated by reference.

      3. Respondent ha[s] also issued a policy statement which states:

         Canteen coupon books shall be the approved medium of exchange for the inmates at Union Correctional Institution. Currency, coins or

         other negotiable instruments in the possession of an inmate are con- traband.

         Section 81-6.3(A)

         Union Correctional Institution Operating Procedure #81-6 (IOP)-Issued 2/16/62; revised 10/2/81

         SEE Exhibit "B" attached hereto.

      4. In another policy statement, Respondent require[s] the confiscation of cash to be used instead (coup[o]ns) cash. [sic] Regi[o]nal Operating Procedure #6 (ROP), relating to money, the conversion of United States currency and postal money orders into coupons in lieu there for.

(5). . . Section 120.52(14), Fla. Stat. (1981).

Neither of the policy statements ha[s] been formally adopted as required. Id. 120.54(4) But see, 33-1.07(4), FAC.

The rule provision incorporated in the petition by reference, Rule 33- 3.06(5)(b), Florida Administrative Code, states:

In institutions using canteen coupons instead of cash money, possession limits will remain the same. Any and all cash found in the possession of an inmate will be considered contraband and deposited in the Inmate Welfare Trust Fund. Inmate canteen coupons are contraband in the possession of anyone other than the inmate who purchased them. They cannot be traded among inmates, nor can an inmate spend coupons from another inmate's canteen hook. All coupons must remain in the coupon book until exchanged for items from the canteen.

The institutional operating procedure challenged by petitioners and attached to the petition as Exhibit B, provides:

Union Correctional Institution Operating Procedures No. 81-6 Inmate Canteen Coupon Books Date Issued: 2-16-62 Date Revised: 10-2-81

81-6.1 Authority

Department of Corrections, Policy and Pro- cedure Directive No. 2.02.09 Department of Corrections, Policy and Procedure Directive No. 2.02.23 Regional Operating Procedure No. 81-6.2 Purpose

A. The purpose of this operating procedure is:

1. To establish the approved medium of exchange for inmates assigned to Union Correctional Institution;

2. To establish procedures for obtaining coupon books for use in the Canteen System;

3. To place responsibility for distributing and accounting for Canteen coupons;

4. To place limitation upon inmates use of coupon books;

5. To establish procedures for redemption of coupon books; and

6. To identify disciplinary action relative to misuse of coupon books.

81-6Y3 Policy

1. Canteen coupon books shall be the approved medium of exchange for inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an inmate are contraband.

2. All currency, coins or negotiable instruments shall be removed from an inmate's possession

   upon arrival at Union Correctional Institution and transmitted to the Accounting Department for credit to his inmate trust account. A

   receipt will be given to the inmate upon posting the transaction.

3. Inmates may request that up to $20.00 be drawn from their trust account each week and issued to them in the form of coupon books.

4. Coupons will be distributed to inmates by the custodial staff at designated times

   and places each week. Inmates must acknowledge receipt of coupon books given to them.

5. Inmates not in their assigned areas when coupon books are distributed will be credited for the amount drawn upon return of the books to the Accounting Department.

6. The Business Office has the responsibility for design and composition of coupon books. Changes will be made and existing books re- deemed without notice.

7. Inmates must sign each coupon book dis- tributed to them. Coupon books and the denominated coupons within them are numbered.

   Possession of coupons belonging to another inmate is possession of contraband.

8. Coupons are redeemable for merchandise in the Canteen System; however, loose coupons will not be accepted at the sales windows.

9. Contraband coupons will be confiscated and the proceeds will be placed in the Inmate Welfare Fund. Confiscations will be receipted to the inmate by institutional personnel in accordance with Union Correctional Institution Policy Memorandum No. 46.

81-6.4 Procedure

1. Requesting Coupon Books

   1. Inmates who have sufficient funds on deposit in their trust accounts may request coupon books by completing Form UCI-133 in their housing area.

   2. The amount requested must be in even dollars, not to exceed $20.00.

   3. Completed forms must be turned in at designated locations prior to 8:00 A.M. on Wednesday. Only one form per week will be . Off honored.

2. Coupon Distribution

   1. Coupons are distributed by housing area. A listing of inmates in each housing area due to receive coupons is produced weekly and given

      to the cashier, who gathers the required quantity of coupon books for each area.

   2. Custodial personnel verify the coupons pulled for each housing area and acknowledge receipt of the coupons from the Cashier.

   3. Coupon books and withdrawal sheets for each housing area are distributed to housing officers, who locate the inmates and issue the books. Inmates are required to sign

      the sheet opposite their name, number and book numbers assigned to them, to acknowledge receipt of the books. Inmates are also re- quired to sign their book(s) in the presence of the officer.

   4. Signed withdrawal sheets and any returned coupon books which were unissued are to be returned to the Control Room Sergeant, who is to secure them and return them to the Cashier on the following work day.

3. Coupon Redemption

1. Coupons are to be used to purchase items in the Canteens.

2. All Coupons are to remain intact in the book. Loose coupons will not be accepted for redemption.

3. Coupons will be taken from an inmate's possession when he is being trans-

   ferred; however, the value of intact coupons will be receipted for by the officer. Proceeds.

   will be credited to the inmate's trust account, and the account balance will be transferred to the new location.

4. When new coupons are issued, inmate in possession of the old style coupons will receive full credit and a receipt for them

provided they are intact in the original book bearing the inmate's name and number. Loose coupons will not be accepted for redemption.

1. Possession Limit

   1. Any inmate may retain up to $25.00 worth of his own coupons in his possession. Any excess is contraband and will be deposited

   in the Inmate Welfare Fund.

   E. Institutional Rule Violations

   1. Non-adherence to this Institution Operating Procedure may result in the following rule violations:

      1. 3-8 Possession of negotiables-

         another inmate's coupon book, cash or unauthorized negotiables;

      2. 9-5 Theft of coupons from another inmate, officer, canteen outlet or depository;

      3. 9-4 Attempt, attempting to conspire or 05piracycounterfeitinG coupon books;

      4. 3-12 Possession of miscellaneous contraband-more than $25.00 personal coupon limit.

      
      

      Neither party adduced any testimony or other evidence at the final hearing.

      
      

      CONCLUSIONS OF LAW

      
      

   2. The parties have stipulated that petitioners are substantially affected by the rule and IOP they are challenging here, and that they have standing to maintain the challenge pursuant to Section 120.56, Florida Statutes (1983)

      
      

      IOP NOT PROMULGATED AS RULE

      
      

   3. The IOP petitioners are challenging applies only to Union Correctional Institution. It resembles, in this respect, the policy directive stricken as an umpromulgated rule in Department of Corrections v. Sumner, No. AM-256 (Fla. 1st DCA; Mar. 22, 1984), in that it "applies to future occurrences rather than resolving" any particular controversy arising out of past events. There as here the written policy under challenge "applies to everyone subject to the superintendent's power . . .[and i]ts applicability is . . .general While Rule 33-1.07, Florida Administrative Code, authorizes superintendents of the separate correctional institutions to adopt operating procedures for their particular institutions, Rule 33-1.07(4), Florida Administrative code, quoted with approval by the Sumner court, provides:

      
      

      Any material contained in such Directives

      and Operating Procedures that meets the definition of "rule" contained in Section 120.52(14), Florida Statutes, shall be promulgated as a rule of the Department, unless specifically exempted by Florida Statute.

      
      

      In short, the Sumner case controls on the question whether the IOP is a "rule" subject to challenge, and requires the conclusion that it is.

      
      

   4. Inasmuch as respondent has stipulated that IOP 81-6 has not "been formally adopted as required," in accordance with Section 120.54, Florida Statutes (1983), which specifies the procedures for promulgation of administrative rules, IOP 81-6 is invalid as an administrative rule.

      
      

      WRONG FORUM FOR CONSTITUTIONAL CHALLENGE

      
      

   5. Petitioners contend that the rule and the IOP are repugnant to the federal constitution. They argue that Congress' power to "coin money and to regulate the value thereof," U.S. CONST. art. I, 8 precludes any authority in respondent to issue coupons for inmates use in lieu of money. But, under the cases, the merits of a claim that an existing rule is unconstitutional cannot be reached in proceedings like these. Department of Environmental Regulation v. Leon County, 344 so.2d 290 (Fla. 1st DCA 1977)

      
      

      STATUTORY AUTHORITY

      
      

   6. Petitioners argue that respondent lacked statutory authority to promulgate Rule 33-3.06(5)(b), Florida Administrative Code, but several statutory provisions make clear the breadth of the authority the legislature has granted to respondent in these matters. The Department of Corrections shall administer money and other property received for the personal benefit of. . .

      .inmates." Section 944.516, Florida Statutes (1983). The Inmate Welfare Trust Fund to which the rule refers is expressly created by statute and designated as the recipient of the proceeds generated when contraband is liquidated. Section 945.215, Florida Statutes (1983). Section 944.47, Florida Statutes (1983), provides

      
      

      (1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional in- stitution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

      1. Any written or recorded communication or any currency or coin given or trans- mitted, or intended to be given or trans- mitted, to any inmate of any state correctional institution.

         * * * * *

         (c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state

         correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

         Section 944.47(1), Florida Statutes (1983).

         
         

         The legislature requires respondent to promulgate rules relative to inmates' rights, Section 944.09(2)(a), Florida Statutes (1983) and has delegated authority, in the broadest terms, to respondent to promulgate all "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)

         
         

   7. The challenged rule forbids physical possession of cash without limiting an inmate's right to own and control money deposited elsewhere. It also discourages physical exchange of the coupons in two ways: (1) by making them worthless when in the possession of an inmate other than the one to whom they were issued; and (2) by Setting a limit on the amount an inmate can have at any one time. The requirement that "coupons remain in the coupon book until exchanged for items from the canteen" makes enforcing the limit easier. The combined effect of the rule provisions is to substitute coupons traceable to a particular in- mate for fungible cash, and to discourage exchanges of the coupons among prisoners. This undoubtedly removes incentives for theft and blackmarketing. In any event, petitioners put on no proof to show that any aspect of the rule was not "necessary for the efficient operation and management of the correctional System. "Section 945.21(n), Florida Statutes (1983) See General Telephone Co. of Fla. v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984); Department of Corrections v. Roseman, 390 So.2d 394 (Fla. 1st DCA 1983)

   
   

   It is, accordingly ORDERED:

   1. Institutional Operating Procedure 81-6 is declared invalid as an administrative rule.

      
      

   2. The petition to determine the invalidity of a rule is otherwise denied.

   
   

   DONE and ENTERED this 15th day of May, 1984, in Tallahassee, Florida.

   
   

   ROBERT T. BENTON II

   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 15th day of May, 1984.

   COPIES FURNISHED:

   
   

   Kevin O'Oonnell, Legal Intern Randall A. Holland, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

   
   

   Joe Lewis Holland and Douglas LaVerne Adams

2. O. Box 221

Raiford, Florida 32083

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

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Act

Committee

Room 120, Holland Building Tallahassee, Florida 32301

Liz Cloud

Florida Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Docket for Case No: 84-000397RX

Orders for Case No: 84-000397RX