STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH REDMAN, STANLEY BLANDING, ) and DOUGLAS LAVERNE ADAMS, )

)

Petitioners, )

)

vs. ) CASE NO. 85-0797RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Consistent with the Notice of Hearing as amended by Use Order Continuing Final Hearing furnished the parties by the undersigned on April 8, 1985, a hearing was held in this case at the Union Correctional Institution on April 29, 1985 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings. The issue for consideration was whether the Florida Department of Corrections Rule 33-3.02(4), Florida Administrative Code, is an invalid exercise of delegated legislative authority based on the reasons set out in the Petitioner's Petition for Administrative Determination of Existing Rules dated February 27, 1985.

APPEARANCES

For Petitioner: Joseph Redman Stanley

Blanding, and Douglas Laverne Adams, Pro Se

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Julia P. Forrester, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

BACKGROUND INFORMATION

On February 27, 1985, the Petitioners, Joseph Redman, Stanley Blanding, and Douglas Laverne Adams, all inmates at the Department of Corrections' Union Correctional Institution, filed a Petition for Administrative Determination of Existing Rules relating to Department of Corrections (DOC) Rule 33-3.02(4)(a) and (e) on the basis that the rule provisions are invalid as being arbitrary, capricious, without a rational basis in fact, discriminatory in application without a just or rational basis, and, as to subparagraph (a) only, fatally vague.

The matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer and on March 25, 1985 the Director assigned the undersigned as Hearing Officer in this matter. The hearing was originally scheduled to be held at Union Correctional Institution (UCI), on April 11, 1985. However, on April 2, 1985 the Petitioners submitted a Motion for Extension of Time and the undersigned, on April 8, 1985 granted the Petitioners' Motion and reset the hearing for April 29, 1985 at the same location.

At the hearing, Petitioners presented the testimony of Charles D. Conner, Laundry Manager at UCI; Tommie Lee Greene, an inmate at UCI; and their own testimony.

Petitioners also introduced Petitioners' Exhibits 1 through

6 and requested that the Hearing Officer take official recognition of DOAH Case No. 83-3701R and OR2, a series of newspaper articles published in the winter of 1985. Respondent presented the testimony of Paul D. Gunning, Assistant Superintendent for Programs at UCI; and Harry K. Singletary, Assistant Secretary for Operations, Florida Department of Corrections.

The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4., Florida Statutes. A ruling on each proposed 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 suborindate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Petitioners, Joseph Redman, Stanley Blanding, and Douglas Laverne Adams are inmates at UCI. Blanding lives in the southwest unit housing and three times a day is required to walk from that facility to the central mess facility. He is not issued thermal underwear or a raincoat even though he works outside a great deal of the time. Issuance of those items is discretionary with the inmates' supervisor who has consistently refused to draw and issue these items. Blanding contends that during the past winter, he became so cold working outside in the rain and cold, he caught a cold for which he was treated only with aspirin. Because of the situation, he refused to work without additional clothing and was, because of his actions, placed in confinement.

2. Blanding also contends that thermal underwear and rain gear is issued in a discriminatory fashion. He states that the people who work in the laundry get raincoats and thermal underwear, yet he travels the same distance in the outside and does not receive it. His quarters are inadequately heated and in many instances the windows are broken out. Inmates tried to put up cardboard to keep out the cold on occasion and even tried to close the inner doors to preserve what warmth they could. They were; allegedly, told they could not do this. He has repeatedly tried to convince his supervisor to issue the thermal and rain gear on an equitable basis but has been unsuccessful. Nobody in his shift who works outside has received this clothing even though his supervisor has repeatedly promised to get it for them. His letters and a personal visit to Mr. Connors, the laundry manager and clothing supply officer, to explain that he and his co-workers worked outside without adequate protection met with no success.

   
   

3. Blanding is an outside laborer whose duties entail any manual labor that has to be accomplished outside. DOC has a rule which provides that when the temperature falls below 40 degrees Fahrenheit, including the chill factor, outside work is terminated. In practice, however, Blanding works 8 to 9 hour shifts which include outside work regardless of the 40 degree rule if the supervisor so directs. He admits, however, that during the cold weather this past winter, he worked outside only approximately 30 percent of the time. Even so, when he went to the doctor and requested a letter to authorize thermal underwear, he says he was advised that such a request was outside the doctor's authority.

   
   

4. Joseph Redman lives in the west unit at UCI and is required to participate in outside activities as exercise for his back condition. However, on those days when the weather is inordinately cold or rainy, he has to cancel this beneficial exercise because of the lack of either thermal or rain clothing. If he desires to eat, it is necessary for him to make a 400 yard round trip to the dining facility several times a day.

   
   

5. Respondent's rule does not take into consideration an individual's physical condition or how far he has to go to eat. Even if he does not work outside, it is still necessary for him to spend extended periods of time outside in cold or inclement weather. Redman says that the doctor

   agrees that this clothing is appropriate but denies that he has the authority to request its issue.

   
   

6. Petitioner Adams' job requires him to travel around to the various compounds and to attend various call- outs approximately 120 yards from his quarters. Cold weather can often keep him inside, however, he is required to go outside to eat each meal. In practice, even though they do not have raincoats, in rainy weather the inmates are prohibited from standing under available shelter but must remain in line in the rain even if suffering from a bold or other illness in order to eat. Inmates also are not allowed to provide any type of protection for themselves such as a towel or other headcovering unless it Is issued and in most cases, it is not.

   
   

7. Adams contends his dormitory is one in which the heating system is inadequate for cold weather. He wrote to the inspector for DOC and talked to the Assistant Superintendent who, in all fairness, tried to correct the problem but could not. When Adams asked for thermal underwear to be used as pajamas, his request was denied because he does not work outside and therefore fall within the category of individual to who this clothing is normally issued.

   
   

8. Though not a Petitioner here, inmate Tommie Greene has been at UCI for approximately four weeks and has not had any cold weather experience at that facility. However, for the year prior to coming to UCI, he was an inmate at the Florida State Prison, adjoining UCI. In that facility, some cells were adequately warm and some were not. This situation was the same at Baker Correctional Institution where he was also incarcerated for a time. Depending on the floor level the heat may or may not be adequate. No thermal underwear was issued and it was several hundred yards from his living area to the dining facility. In order to eat, inmates had to line up outside the dining facility without raincoats. If it was raining and one wished to eat, one stood out in the rain. This same procedure, according to Greene, applies to UCI where the distance from his housing to the dining facility is more than 100 yards. If it is cold, he must be in it if it rains, he must also be in it, and the only way to avoid getting wet is not to eat. There are approximately 90 people in his area who eat at the same time and they go

   from the cell area to the dining facility in line with an officer leading.

   
   

9. The standard clothing issue provided to inmates at UCI is outlined in UCI Operating Procedure No. 85-02, revised in March, 1985. This procedure calls for each inmate to be issued:

   
   

   1 blue jacket

   3 blue shirts

   3 pairs blue trousers

   1 web belt

   1 pair boxer shorts

   1 pair socks

   1. pair high top shoes

      
      

      In addition, some prisoners whose work calls for it, are issued white shirts and trousers instead of the blue. The shirts, trousers, and jacket are made of a polyester cotton blend of light weight. The jacket is lined with a light flannel. For linen each inmate is issued:

      
      

   2. sheets

   1 towel

   1 blanket

   1 pillow case

   
   

   According to Mr. Conner, the laundry manager and the individual responsible for the issue of clothing to the inmates, thermal underwear is issued only to those inmates who work outside 8 hours a day. This is because of a lack of money. However, he contends that if a doctor prescribed it, he would issue thermal underwear to individuals who do not meet the other criteria. T- shirts for use as underwear were not being issued until recently. However, they are now a part of the issue and will be provided to any inmate who wants one. Straw hats are issued to outside workers through their supervisors who make the determination as to which inmates get them. Raincoats are not issued but are available for purchase by inmates in the institution canteen at a cost of under $3.00 each.

   
   

10. According to Mr. Gunning, inmates who work outside can get raincoats if the department head draws them directly from the warehouse and issues them. The same applies to thermal underwear. When prisoners are dissatisfied with the procedure for issuing clothing and

    equipment, they can either file a formal grievance or write an informal note to the Superintendent or Assistant Superintendent.

    
    

11. Admittedly, until recently, the institution's package rule prohibited inmates from receiving any type of civilian clothing through the mail and as a result, sweat shirts, jogging suits; and other items of a similar nature were prohibited and returned to the sender if sent in. Recently, however, the rule was changed so that inmates are now allowed to receive gray or white sweat shirts from outside correspondents even though jogging suits are still prohibited.

    
    

12. Mr. Gunning admits that certain buildings at UCI, including the dormitory identified by Petitioners, do have problems with heat, but it is not, he says, a chronic problem. There is a chronic problem regarding broken windows which are broken by the inmates as fast as they are repaired. Since cold and climate conditions are considered a health and comfort item, available repairs to the living areas are made as quickly as possible on a priority basis.

    
    

13. He does not see wet clothing as a problem. If it were, he would have heard about it sooner because the inmates would, without question, complain about it. He has heard no complaints about this subject and notwithstanding the allegations by inmates at the hearing that they are not allowed to change their clothing if wet, they are allowed to change if necessary.

    
    

14. Mr. Singletary indicated that the rule on the issue of clothing calls for each inmate to have three sets of clothing in his possession notwithstanding the Petitioner's claim that they are issued only one set at a time. It is more likely that Mr. Singletary's isolation from the inside conditions at UCI renders his opinion less than valid. Accordingly, it is found that most likely the inmates are not issued all their uniforms at one time. This has no real bearing on the ultimate issue of the adequacy of the rule however. He admits that thermal

    underwear is not issued to all inmates. It is seasonal and issued to those inmates who work outside and need it.

    Raincoats are issued as needed for work and those inmates who are not issued raincoats can buy them at a reasonable price. Many inmates who work for PRIDE and the canteen receive direct pay. These include inmates working at the

    furniture factory, the tag plant, the abattoir, and other facilities and many other inmates receive money from outside sources. While some buildings may be underheated in the coldest weather, Mr. Singletary contends that in general, the buildings are warm enough. Recognizing that the package permit rule now permits inmates to receive sweatshirts through the mail, Mr. Singletary indicated that the rule may again be amended to permit inmates to receive thermal underwear through the mail.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Petitioners have attacked two subparagraphs of the rule, that is subparagraph 33-3.02(4)(a) which reads:

    
    

    Each inmate shall be issued sufficient clothing, including outer clothing, underwear, socks, and shoes. In addition, inmates shall be furnished sufficient clothing during cold weather to insure adequate warmth. Each inmate may be required to make a change of outer clothing at least twice a week.

    and, subparagraph 33-3.02(4)(e), which reads:

    
    

    If items such as food service linens, coveralls, aprons, cooks' caps, gloves, rubber boots, raincoats, athletic uniforms, barber and butcher jackets, straw hats and safety helmets are necessary for work, they will be issued to the department requiring them. The superintendent will, on recommendation and justification by the department heads, determine what items are to be purchased and issued to inmates . . . .

    
    

17. The rule in question was promulgated by DOC under its authority contained in Section 944.09(2), Florida Statutes, which provides that the Department of Corrections shall publish rules and regulations which shall include or relate to, inter alia,

    
    

    (e) the operation and management of the correctional institution or facility and its personnel and functions.

    
    

18. Petitioners have the burden of establishing by a preponderance of the evidence that the rule in question is arbitrary, capricious and without a rational basis in fact. Subsection (a) provides that the inmates shall be issued sufficient clothing including clothing for cold feather to insure adequate warmth. Subparagraph (e) provides that specialty items necessary for work will be issued to the department requiring them. It cannot be said that in this case Petitioners submitted any evidence that either provision is arbitrary or capricious or without a rational basis in fact. Neither can it be said, as is claimed by Petitioners, that this section is discriminatory without a just or rational basis. Such discrimination as is inherent in the rule, that between those whose work requires special clothing and equipment and those whose work does not, is certainly supportable. Discrimination by itself is not necessarily improper. Only unlawful discrimination based on particular factors prohibited by the Constitution or the law is proscribed.

1. Subsection (a) is also complained of as being fatally vague and it is conceivable that the use of the terms "sufficient" and "adequate" in that provision may be

   subject to varying definitions and interpretations. There is no evidence that such is the case here, however.

   
   

2. Petitioners have introduced substantial evidence, to some degree contradicted by the Respondent's witnesses, that in application, the rule may be improperly applied. Examination of the material of which the shirts, pants, and jacket are made indicates that extra protection is required in periods of coldest weather. Further, it is difficult to conceive that inmates are required to remain outside in inclement weather without some protection from the rain.

   In that regard, that rain gear may be available for purchase by the inmates in the canteen is no justification for Respondent's failure to provide adequate protection.

   
   

3. Conceding all the above deficiencies in the local application of the rule at UCI, however, none of this supports a conclusion that the rule itself is inadequate or an invalid exercise of delegated legislative authority. Even the fact that the alternative avenue for complaint open to the inmates, that is, the grievance procedure or the letter to the superintendent, may in practice be ineffectual, does not support a conclusion that the rule in issue here is invalid. While its application may be arbitrary and capricious, and it is not concluded that it is, the rule itself is not. There is legitimate basis for the

rule and it is a valid exercise of delegated legislative authority. There is no evidence to support a conclusion that the rule is fatally vague in its terminology.

Based on the foregoing; it is, therefore: ORDERED that the Petition for Administrative

Determination of the Invalidity of DOC Rule 33-3.02 is hereby dismissed.

DONE and ORDERED this 6th day of June, 1985 in Tallahassee, Florida.

Hearings

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

this 6th day of June, 1985.

COPIES FURNISHED:

Joseph Redman 063264

Stanley Blanding, 036264 Douglas Laverne Adams, 031200 Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Julia P. Forrester, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb Executive Director

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 85-000797RX

Orders for Case No: 85-000797RX