STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO and ALLEN L. ) PENOYER, )

)

Petitioners, )

)

vs. ) CASE NO. 84-2222RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 25, 1984, at Clermont, Florida.

APPEARANCES

For Petitioners: Gary M. Piccirillo and

Allen L. Penoyer, Pro Se

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

For Respondent: Lisa Santucci, Esquire

Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

By Petition to Determine the Invalidity of a Policy Rule dated June 15, 1984, Gary M. Piccirillo and Allen L. Penoyer, Petitioners, challenge the validity of a policy rule promulgated as an interoffice memorandum dated March 7, 1984, on the subject of legal copying services, by Lake Correctional Institution (LCI). As grounds for this challenge it is alleged the interoffice memorandum constitutes a rule and, since it was not promulgated in compliance with Chapter 120, Florida Statutes, is invalid.

At the commencement of the hearing Respondent stipulated that the interoffice memorandum was not promulgated in accordance with Chapter 120, Florida Statutes, but contends it is an internal management memorandum and exempt from the definition of a rule.

Thereafter, Petitioner called two witnesses and eight exhibits were admitted into evidence.

Proposed findings submitted by the parties, insofar as they are included herein, are adopted; otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

FINDINGS OF FACT

1. At all times material hereto Petitioners were inmates incarcerated et Lake Correctional Institution (LCI) They are actively involved in numerous litigated matters before both state agencies and the courts, with their prime emphasis devoted to initiating challenges to the rules contained in Chapter 33- 3, Florida Administrative Code, Policy and Procedure Directives issued by the Department of Corrections, Lake Correctional Institution Operating Procedures, and directives issued by Lake Correctional Institution.

   
   

2. On March 7, 1984, LCI's classification supervisor, without formal rulemaking proceedings, issued Interoffice Memorandum (Exhibit 1) establishing procedures for inmates to obtain copies of legal documents and the times such services will be available.

   
   

3. The schedule established in Exhibit 1 is varied by LCI when necessary for an inmate to meet a deadline for filing legal documents.

   
   

4. In Interoffice Memorandum dated March 9, 1903 (Exhibit 5), the hours established for inmates to obtain copying services were Monday from 2:00 p.m. to 4:00 p.m. and Monday, Tuesday, and Wednesday from 6:00 p.m. to 5:30 p.m. The Inter-office Memorandum which is the subject of this litigation changed the copying hours for inmates by deleting the Monday hours from 2:00 p.m. to 4:00

   p.m. and substituting copying hours on Friday from 9:00 a.m. to 11:00 a.m.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. The sole issue for determination in this case is whether the Interoffice Memorandum dated March 7, 1984, is a rule and subject to the procedural rulemaking requirements of Chapter 120, Florida Statutes, or whether it is an internal management memorandum and exempt from those requirements. If the memo is a rule, Respondent has stipulated it was not promulgated in accordance with the procedural requirements of Chapter 120, Florida Statutes. Agency statements which meet the definition of a "rule' within the meaning of Section 120.52(14), Florida Statutes, but which have not been adopted according to the rulemaking requirements of Section 120.54, Florida Statutes, are invalid. Department of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1977).

   
   

7. Section 120.54(14), Florida Statutes, provides in pertinent part the term "rule" does not include:

   
   

   1. Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.

      
      

8. In Department of Corrections v. Sumner, 447 So. 2d 1388 (Fla. 1st DCA 1984), the court approved the Hearing Officer's holding that an interoffice memorandum regulating the hours inmates at Polk Correctional Institution could have visitors was a rule and invalid because not promulgated in accordance with the procedural requirements of Chapter 120. No part of the Hearing Officer's

   Final Order referred to by the court in this decision related to the above- quoted exception from rulemaking accorded internal management memoranda.

   Further, Sumner involved regulating visitors hours and was therefore a plan or procedure that could be determined important to the visiting public.

   
   

9. Dissecting the exception to a rule above-quoted, internal management memoranda must meet certain requirements before they can be excluded from the classification or rule. First, they must not affect the private interests of any person or any plan or procedure important to the public. While Chapter 120 does not define private interests, such interests are generally understood to involve things peculiar to an individual as opposed to things shared by a number of people. Private connotes something personal not shared with others. Webster's New Collegiate Dictionary (1977) defines private as:

   
   

   1a: Intended for or restricted to the use of a particular person, group or class [as a private park] b: belonging to or concerning an individual person, company or interest [as a private house] c(1): restricted to the individual or arising independently of others [as a private opinion] (2): carried on by the individual independently of the usual institutions [as in private study] also:

   being educated by independent study or a student in a private school [as in private students] d: not general in effect as in a private statute] e: of, relating to, or receiving hospital service in which the patient has more privileges then a semiprivate or ward patient 2a(1): not holding a public office or employment [as in private citizen] (2) not related to one's official position. . . .

   
   

10. It is thus clear that the interoffice memorandum here under attack which regulates the hours copying services will be made available to inmates does not involve the private interests of any person.

    
    

11. Since this memorandum is directed only to inmates at LCI, it is presumably applicable only to inmates of that institution and is not a plan or procedure important to the public. However, if the population of LCI is to he considered the public within the meaning of the above-quoted statute, then the procedure can be found to be important to the general public and not excepted from the definition of rule. However, this does not make the memorandum a rule unless it satisfies the third requirement which is joined to the disjunctive first two requirements by the conjunction "and." Thus in order to not be exempt from the definition of a rule, the memorandum must also have application outside the agency issuing the memorandum. Accepting the holding in Sumner, supra, that equates LCI to an agency whose rules must be adopted in compliance with Chapter 120, the memorandum here at issue certainly has no effect beyond LCI. Accordingly, the LCI Interoffice Memorandum dated April 7, 1984, is an internal management memorandum and therefore exempt from the definition of "rule" contained in Section 120.52(14), Florida Statutes.

    
    

12. It is noted that this holding is directly contrary to that made in Final Order in the case of Piccirillo, et al. v. Department of Corrections,

    D.O.A.H. Case No. 83-1498R decided April 5, 1984. That case hold an interoffice

    memorandum issued by Union Correctional Institution regulating the use of the law library was a rule and invalid because not promulgated in accordance with Chapter 120, Florida Statutes. In Case 83-1498R the Hearing Officer accepted Sumner, supra, as dispositive of the issue that the interoffice memorandum there involved was a rule and not an internal management memorandum.

    
    

13. From the foregoing it is concluded that the Petitioners have failed to prove the interoffice memorandum from the Classification and Records Department of Lake Correctional Institution to the Inmate Population dated March 7, 1984, is a rule and requires promulgation in compliance with Section 120.54, Florida Statutes. It is

ORDERED that the Petition of Gary A. Piccirillo and Allen L. Penoyer to have the interoffice memorandum issued at Lake Correctional Institution on March 7, 1984, declared invalid, be dismissed.

DONE AND ORDERED this 28th day of August, 1984, at Tallahassee, Florida.

K. N. AYERS 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 28th day of August, 1984.

COPIES FURNISHED:

Gary M. Piccirillo

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

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

Tallahassee, Florida 32301

Allen L. Penoyer

Lake Correctional Institution Post Office Box 99

Clermont, Florida 32711

Carroll Webb, Executive Director

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Lisa Santucci, Esquire Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Docket for Case No: 84-002222RX

Orders for Case No: 84-002222RX