STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DOUGLAS L. ADAMS, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 84-4373RP
)
DEPARTMENT OF CORRECTIONS, )
)
Respondent. )
)
FINAL ORDER
Consistent with the Notice of Hearing furnished to the parties by the undersigned on January 4, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings at the Union Correctional Institution, Raiford, Florida, on January 31, 1985. The case was concerned with Petitioners challenge to determine the validity of various portions of Respondents Proposed Rule 33-5.
APPEARANCES
For Petitioners: Douglas Lavern Adams, Edwin Paul,
Stanley Blanding, Carl B. Cribbs, Efren Yero, and James M. Cook, Pro Se Union Correctional Institution
Post Office Box 221 Raiford, Florida 32083
For Respondent: Deborah D. Hart, Esquire
Assistant Attorney General Room 1601, The Capitol Tallahassee, Florida 32301
BACKGROUND INFORMATION
On December 8, 1984, the Petitioners listed in the Appearances, above, submitted a Petition To Determine The Invalidity Of A Proposed Rule. The Petitioner specifically referred to provisions of Respondents Proposed Rule 33-
The Petition was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer and the undersigned was appointed to conduct the hearing. The original hearing was scheduled for January 16, 1985, but after a telephone conference call between the parties hereto and the Hearing Officer, held on or about January 14, 1985, the Petitioners Motion for an Extension of Time was granted and the hearing was continued to January 31, 1985.
At the hearing Petitioners presented the testimony of Mr. Cook, Mr. Cribbs, Mr. Blanding, Mr. Yero, Mr. Paul, and Mr. Adams and introduced Petitioners' Exhibits 1 and 2. Respondent presented the testimony of Harry K. Singletary, Jr., Assistant Secretary of the Department of Corrections. The parties requested that the Hearing Officer take Official Recognition of the final orders
in DOAH Case Numbers 82-676R, 83-1022R, and 84- 1788R, all of which pertain to prisoner rule challenges such as here; and the opinion in Department of Corrections v. Roy H. Sumner, 447 So. 2d 1388 (Fla. 1st DCA 1984); and the opinion in Department of Corrections v. Douglas L. Adams, et al, 458 So. 2d 354 (Fla. 1st DCA 1984); Rule 33-12.01, Florida Administrative Code; and Section 944.23, Florida Statutes (1981). In addition, pursuant to motion filed by Petitioners for production of information regarding visitation at other institutions operated by Respondent in Florida, a chart summarizing this information was filed by Respondent on February 5, 1985.
The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4., Florida Statutes. A ruling on each finding of fact has been made either directly or indirectly in this Final Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
FINDINGS OF FACT
Petitioners, Douglas Lavern Adams, Edwin Paul, Stanley Blanding, Carl
B. Cribbs, Efron Yero, and James M. Cook are all incarcerated in the State of Florida at Respondent's facility, the Union Correctional Institution located at Raiford, Florida.
On November 15, 1984, the Department of Corrections forwarded to the Bureau of the Administrative Code for publishing in the next available issue of the Florida Administrative Weekly, its proposed Rule 33-5. The proposed rule in question was published in Volume 10, No. 46 on November 21, 1984. The stated purpose and effect of the proposed rule was to clarify and revise policies and procedures relating to visitation with inmates.
The proposed rule purported to make certain changes to pre-existing Rule 33-5 as outlined in the proposal which, among other things, allowed superintendents to make exceptions to any provision of this rule on an individual case by case basis, based on the best interests of the inmate, the security and welfare of the department, or both with the qualification that the exception could not be more restrictive than the provisions of the rules and with the further requirement that all visiting policies promulgated by the superintendent shall be subject to approval by the Secretary of the department.
Petitioners contend that the proposed changes severely limit their prior existing visiting rights. Specifically, Petitioners' contentions include:
Rule 33-5.01 is without legislative authority in that the Secretary has no authority from the legislature to delegate policy making authority to superintendents;
Rule 33-5.04 is an invalid rule for the same reason and because it deprives hospital inmates of family visits in an arbitrary and capricious manner, without a valid penological objective, and in violation of both equal protection clauses of the State and Federal Constitutions and is fatally vague and invalid in that by stating, "any other special status" it fails to specify what status prisoners will be prohibited from visitation;
Rule 33-5.07(5) constitutes an invalid delegation of legislative authority to an employee;
Rule 33-5.08(2) is arbitrary, capricious, and without any known penological objective, constitutes an abuse of discretion, and is unreasonable in that it is without a rational basis for the potential reduction of visiting days;
Rule 33-5.08(3) is discriminatory on its face, is fatally vague, and insufficient in specificity to inform Petitioners what circumstances will be considered;
Rule 33-5.08(4) is without a rational basis in fact and is fatally vague;
Rule 33-5.10(c) is an unconstitutional rule in that by authorizing unwarranted searches and invasions of privacy of visitors, this would discourage visitation and thereby deprive Petitioners of visits;
Rule 33-5.08(12)(c) is fatally vague and overbroad and discriminates against female visitors in an arbitrary and capricious manner by permitting their exclusion if they are "not appropriately clothed or are dressed in revealing attire
. . . and other like attire";
Rule 33-5.08(14) and (15) constitute an abuse of discretion and are discriminatory in an arbitrary and capricious manner in that they refer without defining or explaining "security" reasons for allowing non-contact visits;
(j) Rule 33-5.04 and 33-5.08(2) render the proposed rule ambiguous and vague because prisoners will not be able to ascertain if they are entitled to visits and the rules cannot be uniformly applied on a just and rational basis;
(k) that Respondent has failed to provide adequate notice of the proposed rule to those inmates in administrative, disciplinary, and close management status.
The proposed changes to the rules came about after Respondent conducted a survey of the existing visitation policies of all institutions within its system. This review indicated a need for a statewide set of standards for visitations while at the same time allowing the superintendents of the various institutions the flexibility to tailor standards at the individual institutions to local needs and the special needs of the inmates. The survey showed a need for some flexibility within the rules to accommodate the uniqueness of the individual facilities and the special needs inherent therein while at the same time addressing the overall needs constant throughout the system such as security, inmate health and welfare, and safety of both staff and inmate population.
Primary among the concerns considered by the Department was the security aspect. The need to control contraband and to maintain order and discipline within the confines of any given facility is obvious. Without question a valid concern of the staff is the ability to control who and what goes into the facility. The superintendent has the inherent power to interdict the introduction of drugs, alcohol, weapons and similar contraband into a facility. He or she also has the responsibility to insure against the potential for disturbance caused by obviously inappropriate clothing worn by staff visitors to a sexually segregated institution.
James M. Cook is an inmate at the Union Correctional Institution who has received special visits of the type to be governed under proposed Rule 33-
5.04 in the past. On those occasions he had to establish for his proposed visitor the classification the visitor would fall under, such as distance from the facility travel led or other criteria. In his opinion the proposed rule is somewhat vague. He contends it does not give specifics as to mileage, clothing to be worn, etc., in detail adequate for the proposed visitor to know what is required. He understands from a conversation with his classification officer that the distance requirement to be applied under the new rule is 400 miles but this criteria is not specifically stated in the proposed rule nor can it be determined from reading the rule. As to female visitors, he contends that that portion of the proposed rule which provides for appropriate clothing is insufficient in detail to insure the visitors will be properly dressed for the visit. It has been his experience in the past that if a female visitor is improperly dressed, as determined by the institution's personnel, the guards require her to wear a shapeless smock.
Under the terms of the new rule, Cook said, he is required to inform his visitor what can and cannot be worn, but because the rule is devoid of detail, it is difficult for him to do this.
Proposed Rule 33-5.06(3) does not, as Cook asserts, require the inmate to inform the visitor in detail of the particulars of the visiting program only the basics, such as hours, days, and, to be sure, the need for non-provocative apparel.
The question on the distance requirements for special visits is also of concern to inmate Cribbs whose mother lives in Tampa, a 350 mile round trip from this facility. Cribbs contends the proposed-rule has no specifics in it as to mileage for special visitors. In the past, his mother, coming from Tampa, has been able to visit on both Saturday and Sunday and because of the distance, has made a two day visit out of the trip. The new rule, according to Cribbs, leaves everything up to the superintendent regarding visiting privileges and depending upon the determination of that officer, his mother may be forced to come this long distance to see him only on one day of the weekend. Under the current policy, inmates are allowed visitors on both Saturday and Sunday and the new rule, he feels, will change this benefit to allow visits normally only once per weekend. Cribbs is also concerned about the dress requirements of the new rule. He is concerned with the term "like attire" which he feels makes it difficult for him to tell his female visitors what to wear.
Petitioner, Stanley Blending, has also had visitors on both days of the weekend in the past. He had a need for this benefit because his grandmother came from Canada for a visit once a year and, in addition, his son comes up to visit from time to time and the two day visit is required for him to talk with the young man regarding family problems. At UCI he currently gets two days of visits and, in his opinion, these two day visits have had a beneficial,
rehabilitative effect. As in the case of Cribbs, Blanding's family comes from Tampa and that distance makes it necessary for them to have a two day visit. He is concerned and believes that the proposed rule will limit visits to one day per weekend which, in his opinion, would severely limit the amount of visitation he would receive. He is also concerned, about the proposed rule regarding appropriate dress for female visitors. The proposed rule says nothing about the institution providing a smock for inappropriately dressed females as has been done in the past. Combining the two changes, if his visits were reduced to one day or his female visitors were barred because of "improper" clothing, either situation would have an adverse effect on him. The current rule does not provide what is appropriate clothing and under the terms of the new rule, he would have a difficult time explaining to his female visitors what "appropriate" clothing is.
Inmate Yero was in disciplinary confinement in December, 1984 and then placed under investigation. While he was in that status from October 26, 1984 through early January, 1985, he did not get to see nor did he ever receive notice of the proposed rule. Prior to October, 1984, he was allowed visitors from one to two hours. This was the rule for prisoner in disciplinary confinement. The new rule would allow the superintendent to restrict visitors to prisoners in Yero's status. The new rule adds the word "infirmaries" to the list of special status inmates. He signed the Petition herein with only limited knowledge of its contents.
Inmate Paul is presently a hospital inmate and has been intermittently since 1982. He is housed in the hospital because of a disability which confines him to a wheel chair not because of any contagious or infectious disease. He understands the new rule to state that since he is in the hospital, he could be denied visitors even though he is not a patient but a special housing prisoner who is considered to be a regular inmate. He was advised that when his sister from New York called to arrange a visit with him, she was told that because he was in the hospital, he could have only a one hour visit with her. The new rule could prohibit him from having visitors at all, he says, and leaves too much discretion with the superintendent. The one hour rule which applies to inmates in the hospital has had an adverse effect on him since he has been deprived of visits from his sister. He and his sister are orphans, he says, who have just been recently reunited after a long separation. He contends that the new rule puts too much control in the hands of the superintendent. It is too vague and gives the superintendent authorization to make decisions which he should not have.
The propriety of placing control, the right to make decisions, and discretion in the hands of the superintendent is clear. Without question, the superintendent is the individual most qualified to make those decisions and to exercise those functions.
Adams' mother is old. Because of this and because she cannot walk far, the past changes in parking and entry procedures have cut down on her visits to him. Because of this, he is not likely to be affected by the potential for a change to one day visits. However, as to the dress rule, he would have difficulty in telling his family what they could or could not wear based on the descriptions or lack thereof in the proposed rule. During the four years he has been in confinement, he has found it difficult to know or determine who is going to do what at any given time. His mother has told him that she would like to visit him but doesn't want to go through all the difficulties she has to encounter when she does visit. She states to him that the metal in her bra sets off the metal detector utilized to screen visitors and as a result, she
wears a tank top on her visits which would be prohibited by the new rules. He considers this to be deleterious to him and his welfare and he contends that the new rule will destroy any uniformity among the 79 or so different facilities within the DOC. There is no evidence that the sole alternative to a metal braced bra is a tank top. Numerous other modes of dress are available to women of all ages, sizes, and shapes.
According to Harry Singletary, Assistant Secretary of the Department of Corrections, the Department is presently reviewing all rules and policy and procedure directives in an effort to do away with the latter and make all controlling directives for the Department in the form of Rules. The intent is to promulgate standards for statewide application to meet the needs of the families of the inmates, the inmates, and the institutions. Mr. Singletary contends that the majority of changes set out in the proposed rules make them more liberal for the inmate or increase security for the institution. Both of these goals are worthy and supportable. It was the intent of the drafters of the rule to standardize procedures so that visitation would be made easier and safer and to increase uniformity among the institutions so that prisoners moving from one institution to another could know what to expect. It is the Department's position that a rule should not create surprises for the inmates and should liberalize and simplify procedures for them as much as possible.
As to proposed Rule 33-5.01, the reason for the new language was to give the Superintendent the discretion to provide more visitation for the inmates and their families and to deal with special needs of the inmates or the institution. The change here is to liberalize - not penalize. The terms of the proposed rule provide that Superintendents' interpretations cannot be more strict than the terms of the rule and it in essence legitimizes superintendents being more liberal than the rule calls for. Based on the population and size of the UCI visitor park, notwithstanding the concerns of Mr. Adams that the Legislature and recent court decisions will have the effect of significantly reducing the population at UCI, there should he no change in visitor policy as it exists now at this institution. As a matter of fact, if the population decreases, there would be less pressure or reason to reduce the visit days for each inmate to make more time available for others. The fact that some language is less than specific (i.e., 6 hours instead of 9 am to 3 pm) reflects an intention on the part of the drafters to give the superintendent latitude to tailor local policy to the needs of the inmates and his institution. It is recognized that there may be some abuses by superintendents, but if this should occur, it would be the exception rather than the rule and there are adequate remedies existing in the DOC rules through grievance procedures to rectify any such abuse.
With regard to proposed Rule 33-5.04, dealing with special status inmates, the change here proposed adds only the word "infirmaries." The existing rule was changed only to describe all types of facilities. The rule originally was designed to prevent the spread of disease incident to the closeness of prison populations. However, it is Mr. Singletary's confirmed opinion that ambulatory or non-infectious patient- inmates, such as Mr. Paul, one of the Petitioners here, would be allowed visitors in the visitor park the same as any other inmate, on regular hours.
Proposed Rule 33-5.07(5) is a new offering which gives the Superintendent authority to act to promote discipline but provides adequate safeguards to prevent abuse. Proposed Rule 33- 5.08(3) is also new and it gives the inmates the opportunity to tell the superintendent what they need and
provides for extra visiting time when justified. It also gives specific factors that inmates are to use to justify extra visiting time. It was intended to promote uniformity.
Proposed Rule 33-5.08(10) dealing with searches, is designed to provide for a method to prevent the introduction of contraband into the institution. It is for the security of the institution and if reasonable, should provide no problems.
There are presently no dress codes applicable to visitors coming into UCI or any other institution. Proposed Rule 33- 5.08(1)(c) applies to both men and women and is based on the need for security in the institution. The intent of the agency was to limit the opportunity for rude, suggestive, or untoward comments by inmates which could give offense to the resident inmate relative of the visitor to whom the comments are directed and which could incite fights or other violence.
Proposed Rules 33-5.08(14) and (15) both exist in the present rule. Subparagraph 14 deals with people in protective custody and death row inmates as well as violent inmates. Subparagraph 15 deals with those instances where contact visits might jeopardize security. Those inmates in normal status would not be separated. The rules are based on the need to maintain security and prevent the passing of weapons, the spread of disease, or inappropriate conduct as is periodically demonstrated by inmates and visitors.
The machinery designed by the agency to deal with those instances envisioned by the rule where a Superintendent of a particular institution might want to impose a standard stricter than that encompassed in the rule, requires that superintendent to submit his proposal to the Secretary of DOC along with justification and documentation indicating a need for a stricter standard. It is also envisioned that prisoners requesting a transfer from one institution to another write in advance to the new institution to get the local policy regarding a particular area or, wait to be briefed as to local policy during the incoming orientation on arrival.
Just as the institutional superintendent must justify imposing a stricter standard than called for in the rule, it is, as well, the responsibility of the inmate who request extra visiting time, to present factors justifying the extension, the grant or denial of which is within the prerogative of the superintendent.
Admittedly, while the rule does not define specific criteria for the superintendent to use in making his decision, it will be based on the reasonableness of the request and the sufficiency of the reasons submitted by the inmate. In short, the inmate must make his case and is not limited as to the factors he may use to show the need for extra time or for the change in location. The decision is within the discretion of the superintendent and is similar to other areas such as release, privileges, and the like in which the superintendent has been held capable of legitimately utilizing his discretion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Petitioners have filed a broad based attack on proposed Rule 33-5, Florida Administrative Code under the provisions of Section 120.54(4), Florida
Statutes, which provides for the administrative determination of the validity of a proposed rule. Several of the Petitioners' attacks are directed to sections of the proposed rule which are identical to sections in prior existing rule 33-
For example, proposed Rule 33-5.08(10)(c) is identical to existing rule 33- 5.08(5)(c) except for the last sentence of the proposed rule and Petitioners concede this. Also, Proposed Rule 33-5.08(14) is identical to existing rule 33- 5.08(9) and proposed Rule 5.08(15) is identical to existing rule 33-5.08(10).
Therefore, since it appears that paragraphs 5c, d, e, f, n and q of the Petition challenge existing rules rather than proposed rules, the motion to dismiss filed by Respondent as it pertains to those paragraphs of the Petition is hereby granted.
A proposed rule may be challenged under the provisions of Section 120.54(4) if it can be shown that the proposed rule is an improper exercise of delegated legislative authority. To sustain this challenge the Petitioners must satisfy Use burden of showing that the proposed rule exceeds the authority granted by the legislature; is not appropriate to the ends specified in the statute; is not reasonably related to the purpose of the legislation enabling it; or is arbitrary and capricious. Agrico Chemical Co. v. State, 365 So. 2d 759 (Fla. 1st DCA 1978).
The Department of Corrections is directed to promulgate and enact regulations designed to control and govern the operation of the correctional systems within the Department. Section 945.21, Florida Statutes, provides:
The Department shall promulgate regulations governing the administration of the correctional system in the operation of the department. In addition to specific subjects otherwise provided for herein, the regulations of the department may relate to:
* * *
(i) Visiting hours and privileges.
Section 944.23, provides:
The following persons shall be authorized to visit at their pleasure, all state correctional institutions . . . No other person, not otherwise authorized by law, shall be permitted to enter a state correctional institution except under such regulations as the department may
prescribe . . . .
Section 20.05 indicates:
Each head of a department, except as otherwise provided herein, shall:
* * *
(1)(b) have authority, without being relieved of responsibility, to execute any of the powers, duties, and functions vested in said department or in any administrative unit thereof, through said administrative units and through such
assistants and deputies as shall be designated by the head of the department from time to time, unless the head of the department is explicitly required by law to perform the same without delegation.
Section 20.315(20) provides:
(20) TRANSFER OF AUTHORITY.--all statutory functions of the department not otherwise herein assigned to a specific unit of the department are assigned generally to the department and may be allocated and reallocated by the secretary to an authorized unit of the department.
Petitioners attack Rule 33-5.01 on the basis that the Secretary has no authority to delegate policy making authority to superintendents. So long as rules are properly promulgated pursuant to Chapter 120 and so long as superintendents' actions do not exceed the standards and guidelines provided by the rules, the secretary of a department clearly has authority as set forth by the legislature to delegate to superintendents the authority to implement these rules. Department of Corrections v. Adams, et al., 458 So. 2d 354 (Fla. 1st DCA 1984). Petitioners urge that the authorizations for superintendents to make exceptions to the proposed rule on an individual case by case basis is unfounded in that the rule clearly states that any exceptions which make more severe or stringent the terms of the proposed rule must be approved by the secretary of the department. It appearing that the superintendent's authority, thus limited, does not exceed that envisioned by the Legislature in the enactment of the statute, Petitioners' claim here is without merit. Inasmuch as the Petition addressed the lack of legislative authority in regard to this particular section, Petitioners' argument contained in their Proposed Recommended Order, relating to the vagueness of the rule is irrelevant at this juncture.
Petitioners attack Proposed Rule 33-5.04 on the basis that they contend it is vague and ambiguous. This rule permits superintendents to restrict or prohibit visits to inmates in any type of special status and is a reiteration of the existing rule with the sole exception that it adds the "infirmaries" to that defined group of special status facilities: There is nothing vague or ambiguous about the rule. It is a rule of permission rather than requirement and does not define instances where restrictions may be imposed. Mr. Singletary was quite clear in his testimony of the reason for the rule, which was legitimate and gave assurances that absent any medical or disciplinary rule for seclusion, individuals like Mr. Paul would not be denied visits. Unfortunately, the situation regarding Mr. Paul's sister was undoubtedly caused by an error on the part of an unthinking functionary whose personal mistake cannot be attributed to the rule. A sound and logical basis exists for the rule. That it may be misapplied does not justify declaring it invalid and there are other remedies for the misapplication.
In their challenge to proposed Rule 33-5.07(5), Petitioners again contend that this section constitutes an invalid delegation of legislative authority to an employee. In doing so, they clearly overlook the provisions of Section 20.315(20) which specifically authorizes the allocations by the secretary to an authorized unit of the department of all functions not otherwise assigned by the statute. It would be unreasonable to restrict the implementation of duties at individual institutions to the superintendent
himself. It is clear that the proposed rule, in referring only to the "superintendent or his designee," without further identifying the designee, is broad and should be further defined. A further comment such as, "the assistant superintendent in the absence of the superintendent" or "the senior officer present in the chain of command in the absence of the superintendent" should be inserted to make more clear the individual to whom this authority may be delegated, but this deficiency does not render the proposed rule invalid.
Petitioners attack proposed Rule 33-5.08(2) as being arbitrary, capricious, and without a valid basis. These terms, were defined in the Agrico case, above, as:
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.
Here, Petitioners have not given any indication through competent evidence that this provision in the proposed rule is arbitrary or capricious. Mr. Singletary indicated that such a provision would be available primarily to relieve overcrowding in the visitor facility but that if not needed, the measure would not be implemented. He further indicated there was no reasonable prediction that conditions at UCI would, in the foreseeable future, become so crowded as to necessitate its implementation. This information tracks squarely with the testimony of Mr. Adams who indicated his information that UCI population was to decrease. It is clear then that the rule is neither capricious nor arbitrary, and there is a potential basis for it if the institution's population should become such as to merit its enactment.
Proposed Rule 33-5.08(3) is attacked as being discriminatory, vague, and insufficient in specificity. This provision, which authorizes the superintendent, under unusual circumstances, to allow an inmate to receive additional visiting privileges, is designed to benefit those prisoners who are confronted with a situation out of the ordinary which justifies granting of the additional privilege. It is not necessary when speaking of the granting of an additional privilege to specify the entire spectrum of conditions which might justify it. It is sufficient to delegate to the superintendent, as was done here, the authority to grant the additional visiting period if in his judgment the circumstances merit it and the inmate has demonstrated the requirement for it. Nonetheless, basic guidelines are given such as traveling distance, and frequency of visit availability and there is absolutely no evidence of any discriminatory potential inherent in this provision.
Proposed Rule 33-5.08(4) is attacked as being without a rational basis in fact and fatally vague. This rule, which permits the superintendent to designate the visiting facility as a non-smoking area within five specific and one general criteria, cannot be reasonably considered vague, and, in light of the demonstrated potential for damage to innocent non-smokers, cannot be said to be without basis.
Proposed Rule 33-5.08(12)(c) is attacked as being fatally vague and overbroad and discriminating against female visitors. This provision might well be successfully challenged if it were relating to such a facility as an amusement park or a public recreation area. However, here the institution in question is a tightly closed society where the majority of the inmates, cut off from routine contact with other segments of society for extended periods, are of the same sex. The rule here is designed and calculated to keep to a minimum the
potential for explosive situations. It is not at all unreasonable to require members of the opposite sex to dress themselves, for the period of the visit, in a non-provocative fashion. The rule, while admittedly using the terms, "appropriately" and "other like attire" is, nontheless, fleshed out with examples of inappropriate attire which are contained in the terms of the proposed rule. This rule cannot be said to be vague or overbroad under the circumstances here, and if it in some way places greater emphasis upon females than upon males, this emphasis is justified under the circumstances.
Petitioners next contest the provision of Proposed Rule 33-5.08(12)(c) which deals not, as Petitioners allege, with female visitors, but with all "persons desiring to visit. . . ." reading of the provision in question clearly shown that it applies to both sexes and is, therefore, not discriminatory against female visitors. Petitioners also contest it, however, on the basis that it is fatally vague and overly broad and arbitrary and capricious stating that these defects exist in application because, "most of the clothing proscribed is ordinary clothing - innocent in itself." The theory behind this provision was discussed above. By far the largest percentage of inmates are males incarcerated without any normal contact with females. It would not be good policy to allow female visitors to come into this totally male environment wearing provocative or revealing attire to confront men whose opportunity to vent the feelings such attire is likely to generate is severely restricted. It does not take much imagination to conceive of a situation whereby a female visitor to one inmate, dressed in a revealing outfit, is the subject of an inappropriate comment by another inmate which quickly could generate an inflammable situation. The rule offered here is designed to prevent, as much as possible, this clearly foreseeable situation and cannot be called arbitrary or capricious.
As to the issue of vagueness, it would be impossible to specifically define every piece of clothing that could be considered inappropriate or revealing. The best anyone could possibly do would be to cite examples and leave to the honest judgment of those in charge the task of determining what is appropriate on a case by case basis. Here, the examples given are clear and unambiguous. "Miniskirts, see-through blouses, braless attire, tank tops, swim suits, shorts, undershirts, and "other like attire" gives a reasonable definition of what will be considered to be appropriate and what will not. Because of the conditions involved here it can reasonably be concluded that the rule proposed in this case is capable of reasonable definition and is not vague or overly broad.
Petitioners also claim that Proposed Rule 33-5.08(2), discussed above in connection with another objection, is ambiguous and vague because prisoners will not be able to ascertain if they are entitled to visits and the rules cannot be uniformly applied.
It is quite clear that the proposed rule is neither vague nor ambiguous. It clearly states that regular visiting hours shall normally be on Saturday or Sunday but not both. If harsh, that is certainly clear. However, the agency has also attempted to soften the application of that rule where possible by giving the superintendent authority to liberalize it when circumstances permit. Though any tightening of the terms of a rule requires a historical precedent and approval of the Secretary, liberalization is left within the judgment of the local superintendent and is predicated on his staffing and resources. Though the inmates may not lie the rule, their dissatisfaction does not support a conclusion that it is either vague or ambiguous.
Finally, Petitioners allege that Respondent failed to provide adequate notice of the proposed rule to inmates in other than normal confinement status. These Petitioners presented evidence of only one inmate who may not have received adequate notice of the proposed rule. However, it should be noted that this inmate had sufficient notice to become a party to this action. Petitioners have the burden of establishing their case with evidence. Allegations are not evidence and will not alone support defeat of the rule.
Petitioners' post-hearing Proposed Recommended Order contains numerous allegations and attacks on the proposed rule which were not included in their Petition and were not discussed at the hearing. Therefore, having not been previously raised, they will not be treated here.
Petitioners' evidence fails to show that the proposed rule is arbitrary, capricious, vague, ambiguous, or discriminatory. There is also no evidence to establish that in enacting this proposed rule, the department exceeded the authority granted it by the Legislature or that regulation of the matters involved was not contemplated by the Legislature. It is a general rule that agencies are to be given wide discretion in the exercise of their lawful rulemaking authority which is clearly conferred or fairly implied and consistent with the agency's general statutory duties. Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515 (Fla. 1st DCA 1984); Florida Commission on Human Relations v. Human Development Center, 413 So. 2d 1251 (Fla. 1st DCA 1982). Here, Petitioners have failed to show by a preponderance of the evidence that the proposed rule is an invalid exercise of the agency's delegated legislative authority.
What has been shown, however, is that superintendents, who have the responsibility for the operation of correctional facilities, have the responsibility to operate them so ,as to provide rehabilitative confinement in a safe, effective institution for the benefit of not only society but the inmates as well. These superintendents must have the authority to enact measures consistent with responsibility. It is both unreasonable and impossible to require them to operate without giving them reasonable discretion in the application of the rules under which they operate. Safeguards have been built into the proposed rule to insure that this exercise of discretion is not unbridled but subject to approval by the Secretary whenever it would increase the severity of a rule.
Nowhere is it stated that rules must be popular or pleasant in their effect to be sustainable. What they must be is fair, non-discriminatory, neither arbitrary nor capricious, promulgated subject to appropriate legislative authority, and capable of being understood and implemented by both those charged with their implementation and those governed by them. Petitioners evidence has been more speculative than demonstrative. That evidence does not support the conclusion that the proposed rules are deficient.
It is, therefore, ORDERED that the Petition to have Proposed Rule 33-5 declared invalid be dismissed.
DONE and ENTERED this day of April, 1985, in Tallahassee, Florida.
ARNOLD H. POLLOCK
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 23rd day of April, 1985.
COPIES FURNISHED:
Louis A. Vargas, General Counsel Department of Corrections
1311 Winewood Boulevard
Tallahassee, Florida 32301
D. L. Adams, E. Paul, S. Blanding,
C. Cribbs, E. Yero, and J. LCook Union Correctional Institution
P. O. Box 221
Raiford, Florida 32083
Deborah D. Hart
Assistant Attorney General Office of the Attorney General Department of Legal Affairs Suite 1601 - The Capitol Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee
Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud Department of State
Administrative Code Bureau Room 1802, The Capitol Tallahassee, Florida 32301
Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32301
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Apr. 23, 1985 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 23, 1985 | DOAH Final Order | Changes to rule not vague, ambiguous, indefinite, arbitrary, without valid basis or an invalid exercise of delegated legislative authority. |
