STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS L. ADAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1842RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Consistent with the Notice of Hearing furnished the parties by the undersigned on May 30, 1986, 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 June 27, 1986. The issue for consideration was whether Respondent's proposed Rule 33- 3.005(14)(a) - (c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

APPEARANCES

For the Petitioner: William Joel Keel

Authorized Representative #060263 Union Correctional Inst.

Post Office Box 221 Raiford, Florida 32083

For the Respondent: Julia P. Forrester, Esquire

Assistant Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301

BACKGROUND INFORMATION

On April 15, 1986, the Respondent, Department of Corrections (DOC), proposed to amend Section 33-3.005, Florida Administrative Code, dealing with Legal Documents and Legal and Privileged Mail, by adding thereto subparagraphs (14)(a) through (c) which provide the procedure for the forwarding of inmates' legal mail as well as establishing the responsibility for any postage due as a result thereof. Thereafter, on May 19, 1986, the Petitioner filed a Petition to Determine the Invalidity of a Proposed Rule pursuant to Section 120.54(4)(a), Florida Statutes (1985), alleging in the Petition that the alleged rule constituted an invalid exercise of delegated legislative authority because it:

1. is arbitrary and capricious;

   
   

2. constitutes an abuse of delegated legislative authority;.

3. is violative of Petitioner's constitutional right of access to the courts; and

   
   

4. violates the Equal Protection Clause contained in the United States Constitution.

The petition was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer and on May 28, 1986, the Director appointed the undersigned as Hearing Officer in this case. The Notice of Hearing was forwarded to the parties on May 30, 1986, and the hearing was held as scheduled. Prior to the hearing, Petitioner filed a motion to have Mr. Keel act as his personal representative in this case and this motion was granted. The Petitioner also moved for the disqualification of the Hearing Officer which was denied.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Retha Tyson Tatum, a corrections officer in the mail room at Baker Correctional Institution, Mickell R. Odom, a corrections officer at the same facility, Fred Combs, a corrections officer in the mail room at Union Correctional Institution, and Harry K. Singletary, Assistant Secretary for Operations, Department of Corrections. Petitioner also introduced Petitioner's Exhibits A and B. Respondent cross- examined Petitioner's witnesses but called none of its own.

Subsequent to the hearing, Respondent submitted post hearing proposed Findings of Fact which have been thoroughly considered and evaluated in the preparation of this Order and the action taken on each is set out in the Appendix attached hereto. Petitioner's submission was argument only.

FINDINGS OF FACT

1. Petitioner, Douglas L. Adams, has been an inmate in the DOC system since prior to his arrival at UCI in January, 1984. Before coming to UCI he was confined at Baker Correctional Institution. When he was transferred to UCI he was expecting legal mail from the Florida Attorney General's Office which was to contain certain transcripts relating to a case he had before the courts. The package was received at Baker Corrections Institution after his departure and was forwarded to him at UCI. When it arrived, because it was not first class mail, there was postage due for the forwarding in the amount of $2.85 and the package was held at the Post Office in town for payment. He did not have the money to pay to pick it up at the time or for several weeks and prison scrip was not acceptable. Because he was unable to arrange to pick up the package within a reasonable time, the package was returned to the sender from which it was ultimately again sent with sufficient postage. By the time it got to him, however, the brief for the preparation of which he was going to use the transcript had already been filed. Because of the lack of the transcript, the brief was inadequate, however, and his appeal was unsuccessful.

   
   

2. Prior to April 15, 1986, officials of DOC developed a proposed rule to be incorporated in Rule 33-3.005, Florida Administrative Code, dealing with the handling of inmates' legal mail. This rule was proposed because the DOC had received a complaint from a court of this State that some legal mail sent by the court to inmates was not being forwarded to the inmate who had been reassigned and was being sent back) to the court to the detriment of the inmate. This was a situation similar to that described above relating to the Petitioner herein.

   To correct this situation, this rule was developed calling for the forwarding of all legal mail, whenever received, to the inmate addressee wherever the inmate is located.

   
   

3. Now, all legal mail will be forwarded by the receiving institution to the inmate at his new institution. Non legal mail is not.

   
   

4. Since legal mail is generally first class mail, which is, under current DOC regulations, not opened before delivery unless contraband is suspected, there is no additional cost for the forwarding of this mail. There are certain cases, however, when the legal mail is in the form of a package containing a transcript or something of a similar nature, which cannot go first class mail, and in that case, additional postage is required. In that case, it has been the policy of the DOC, which is now formalized in the proposed rule, to forward the mail to the new installation through the postal system, with the result that postage due is to be collected from the inmate at the new institution. Even if the legal mail were to be collected, placed in a DOC envelope, and then forwarded to the new institution, it would still have to go through the U.S. mail system since DOC does not operate an internal courier system.

   
   

5. This has constituted a problem for some inmates who do not have access to funds with which to pay postage due fees. Mr. Singletary, DOC's Assistant Secretary for Operations, when made aware of this situation at the hearing, committed the Department to amend the proposed rule immediately to provide that if postage becomes due as the result of forwarding legal mail, the DOC will assume the cost of that additional postage. DOC will not assume the cost of postage due if the legal mail is sent originally with insufficient postage, however.

   
   

6. As a result of this stipulation, therefore, the policy now to be followed in DOC, which will be formalized immediately in an amendment to the proposed rule, will be that all legal mail addressed to inmates who have been transferred from one institution within the Department to another will be forwarded to the gaining institution without any limitation as to time and any additional postage due on the bona fide legal mail arising solely because of the forwarding will be assumed by DOC and not the inmate to whom the mail was addressed.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Under the provisions of Section 120.54(4)(a), Florida Statutes: "Any substantially affected person may seek

   an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of

   delegated legislative authority."

   
   

   Here, the evidence clearly shows that Petitioner, an inmate at a DOC institution, who has had in the past and continues to have instances involving the receipt of legal mail, is an affected party as envisioned by the statute.

   
   

9. In his Petition contesting the invalidity of the proposed rule, however, Petitioner alleges that the rule is arbitrary and capricious in that it

   allows the Respondent to abrogate its affirmative obligation to be sure that prisoners' access to the courts is not hindered." He contends that it is ridiculous to require the DOC to return legal mail to the postal service when the prisoner is still within the DOC. However, the evidence indicating that even if the department were to itself ship the legal mail from one institution to another, it would have to do so through U.S. Mail channels, clearly establishes that this contention is without merit. There is a perfectly reasonable, legitimate, and proper reason for the promulgation of this proposed rule and that is to insure that legal mail is forwarded to the intended recipient with the least possible delay. By no stretch of the imagination can this be declared arbitrary or Capricious.

   
   

10. Much the same rationale can be utilized in dismissing Petitioner's second contention that the proposed rule constitutes an abuse of delegated authority. The argument by Petitioner supposes that additional cost would be imposed on the prisoner by the procedure to be followed, but this has clearly been shown to be in error even prior to the agreement by Mr. Singletary for DOC to assume all costs of forwarding bona fide legal mail. By far the greatest majority Of the items in question would be forwarded at no cost to either the department or the inmate since it is a continuation of first class mail service.

    
    

11. In his third attack on the proposed rule, Petitioner contends that it violates his constitutional right of access to the courts. Again Petitioner's argument presupposes additional postage costs to the indigent prisoners and again, this argument is shown not to be meritorious. Even now in those few instances where additional postage would be required by the forwarding of legal mail, this cost will be borne by DOC and it must not be forgotten in any discussion of this problem, that the proposed rule is an attempt on the part of the DOC to conform with a valid concern by the courts that the prisoners' access to them not be interfered with.

    
    

12. Petitioner's final attack on this proposed rule relates to an alleged violation of the Equal Protection Clause of the United States Constitution in that those prisoners who have funds to' pay for the cost of forwarding postage can do so, but that those who do not will be deprived of their legal mail. The agreement of the DOC to remedy this situation should put to rest any possible denial of equal protection.

It is, therefore ORDERED that:

The Petition filed herein by Douglas L. Adams, as it pertains to subparagraphs (14)(a) and (b) of proposed Rule 33- 3.005, Florida Administrative Code, is hereby dismissed. The Petition as it pertains to subparagraph (14)(c) of the proposed rule is sustained, and consistent with the agreement of the Assistant Secretary, subparagraph (c) will be amended to provide that if postage becomes due as a result of forwarding legal mail, the cost of such forwarding postage will be assumed by the Department of Corrections if the mail in question is, in fact, bona fide legal mail.

DONE and ORDERED this 14th day of July, 1986, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1842RP

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

1. Incorporated in Finding of Fact 1.

2. Incorporated in Finding of Fact 2.

3. Incorporated in Finding of Facts 2 and 3, except for the last sentence which is not a finding of fact.

4. Rejected as irrelevant and immaterial.

5. Incorporated in Finding of Facts 4 and 5.

6. Incorporated in Finding of Fact 4.

7. Incorporated in Finding of Fact 6.

COPIES FURNISHED:

Douglas L. Adams

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

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

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Exec. Director Administrative Procedures Committee

120 Holland Building 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.

Docket for Case No: 86-001842RP

Orders for Case No: 86-001842RP