STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARVEY JACKSON, )

)

Petitioner, )

vs. ) CASE NO. 86-3889RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Consistent with the Order Granting Continuance entered by the undersigned on October 23, 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 November 24, 1986. The issue for consideration was whether Sections 33-5.006(5) and .007(5), Florida Administrative Code, constitute abuses of agency discretion and an excess of delegated legislative authority because of being arbitrary and capricious.

APPEARANCES

For Petitioner: Douglas L. Adams

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Benjamin E. Poitevent, Esquire

Department of Legal Affairs 1601 The Capitol

Tallahassee, Florida 32301 BACKGROUND INFORMATION

On September 29, 1986, Harvey Jackson, an inmate at the Union Correctional Institution (UCI), in Raiford, Florida, filed a Petition for Determination of the Invalidity of Existing Rules under the provisions of Section 120.56, Florida Statutes, regarding Florida Department of Corrections, (DOC), Rules 33-5.006(5) and .007(5). Jackson claimed that the rule sections in question were arbitrary and capricious and an abuse of discretion and thereby invalid exercises of delegated legislative authority. The Petition was forwarded to the Division of Administrative Hearings on September 30, 1986, for the appointment of a hearing officer, and on October 3, 1986, the case was assigned to the undersigned for hearing.

A Notice of Hearing was furnished to the parties on October 6, 1986, setting the case for hearing at UCI on October 21, 1986. However, prior to that date, Petitioner's ore tenus request to reschedule the hearing was granted and on October 23, 1986, a written confirmation was entered which also set the hearing for November 24, 1986.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Paula Lynn Decker, the fiancee of another inmate at UCI; Timothy J. Cunningham, Supervisor of Classification at UCI; Kenneth W. Snow, a Classification Officer; Thomas L. Fortner, a classification supervisor; Lloyd A. Raines, a corrections officer; and Michael Tyrone Fredericks and Raymond Leslie Huntley, both inmates at UCI. Petitioner also introduced Petitioner's Exhibits

1 through 4. Respondent presented the testimony of Danny Davis, a corrections supervisor; Linda Evonne Seay, a corrections officer; and Mr. Cunningham. Petitioner also requested that the undersigned take official recognition of certain documents which were approved and which have been included in the file as OR's I through IV. Respondent objected to OR II, III, and IV on the grounds of relevance. However, the Hearing Officer chose to overrule the objection and consider the documents for the limited purpose of establishing that other procedures provided for hearings in other situations.

At the close of Petitioner's case, the Respondent moved for a Summary Final Order which was denied. Subsequent to the hearing, both parties submitted Proposed Findings of Fact. A ruling on each has been made which is included in the Appendix to this Final Order.

FINDINGS OF FACT

1. Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto.

   
   

2. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander.

   
   

3. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area.

   
   

4. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession.

   
   

5. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the

   money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough.

   Unfortunately, she was unable to locate the money.

   
   

6. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed.

   
   

7. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period.

   
   

8. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied.

   
   

9. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however.

   
   

10. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits

    from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list.

    
    

11. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this.

    
    

12. Ms. Decker denies ever having been told that she could only spend

    $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time.

    
    

13. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander.

    
    

14. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it.

    
    

15. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so.

16. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR.

    
    

17. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate.

    
    

18. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

20. In the Petition, Jackson claims that the two paragraphs in question are arbitrary, capricious, and an abuse of discretion or in excess of delegated legislative authority.

    
    

21. Section 20.315(1)(c), Florida Statutes, provides for a DOC, the purpose for which, is, inter alia:

    
    

    to provide an environment for incarcerated persons in which rehabilitation is possible. This should include the protection of the offender from victimization within the institution and the development of a system

    of due process and internal legality in insti- tutions.

    
    

22. In furtherance of that purpose, DOC is authorized, under the provisions of Section 944.09(1)(b), Florida Statutes:

    
    

    To adopt rules governing the administration of the correctional system and the operation of the department.

    Section 33-5.006(5), F.A.C provides:

    
    

    Any person may be excluded from an inmate's visitor list for any of the reasons set forth in Section 33-5.007(2) for denying a visit...

    
    

    Section 33-5.007(5), F.A.C. provides:

    
    

    Visiting privileges can be suspended and visitors can be removed from the approved visiting list of an inmate for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of the above. When an incident occurs, a report of the facts, with recommendations, will be pre- pared for the Superintendent's review. Based on the report, the Superintendent, or the Assistant Superintendent, Classification Supervisor or the next senior officer present in the chain of the command in the absence of the Superintendent, will determine final action. The visitor will be notified of the decision in writing, by the institution, with a copy placed in the inmate's record.

    
    

23. The evidence presented at this hearing establishes certain unquestionable facts. These are:

    
    

    1. On the date in question, Mr. Jackson's fiancee, Ms. Alexander, entered the Visitor's Park at UCI for a visit with him with $50.00 in her possession.

       
       

    2. When she left the Visitor's Park after the visit, she had $3.00 in her possession

       and could not account for approximately $20.00 of the difference.

       
       

    3. Though no money was found on Jackson and though Ms. Alexander contends she may have thrown that money away with the trash, she was unable to find it though she looked through 6 or 7 trash cans.

       
       

    4. This type of breach of the institution's policies is considered to be a security breach which can support removal of the visitor from the approved visitor list of an inmate.

       
       

    5. Investigation of the incident in question resulted in a recommendation to the Superin- tendent that Ms. Alexander be removed from inmate Jackson's approved visitor list.

    6. Neither she nor Jackson were advised of the opportunity for a hearing prior to the determination of removal being made.

       
       

    7. The rule in question does not provide for a hearing prior to removal of an individual from the visitor list.

       
       

    8. Though the institution superintendent was present and was informed of the recommendation for suspension, he did not sign the letter of suspension or take any affirmative action to approve the letter.

       
       

    9. Section 33-5.007(5) provides for a report of the facts involved in an incident being used to support removal of a visitor from the list to be prepared and forwarded with recommendations for the Superintendent's review.

       
       

    10. The same rule requires that action be taken by the Superintendent or by the next senior officer in the absence of the superintendent.

        
        

    11. This action was not taken by the Superintendent nor affirmatively concurred in by him in this case though he was made aware of it.

        
        

    12. Though the visitor is to be notified of the decision in writing, initial efforts to accomplish this were unsuccessful due to an improper address. Notification was furnished in writing a few days later, however.

        
        

24. It appears here that this is another example of a perfectly valid rule being subverted in its application by installation officials who do not follow their own rules. The rule itself comports with the requirements for due process and is fully in accord with the law as regards visiting rights of inmates in penal institutions.

    
    

25. The rule itself is not a violation of delegated legislative authority as the Secretary is given the authority and directed to establish rules for the appropriate governance of penal institutions in this state and the inmates incarcerated therein. The charge in Section 20.315 is to provide a safe place for rehabilitation and the terms of this rule are consistent with that charge. By the same token, it cannot be said, them, that the rule is an abuse of discretion or that the provisions complained of specifically herein are either arbitrary and capricious. To the contrary, they appear to be well thought out.

    
    

26. Mr. Jackson asserts that because the rule of the Department providing for suspension of visiting privileges as a form of punishment in disciplinary actions calls for a hearing prior to the imposition of such penalty, here, because the same effect may come about, the same hearing requirement should pertain. His reasoning is understandable but incorrect. Perhaps there should

    be a way for inmates to contest the removal of a visitor from their approved list and such an avenue does exist. It is called a grievance. Further, there is an opportunity for the visitor who receives a letter of suspension to request rescission of that action and reinstatement on the visitor list. Ms. Decker's testimony shows that that works. There is, however, no requirement for a hearing to be afforded either the visitor or the inmate prior to action being taken to suspend visiting privileges of an individual on the visiting list.

    
    

27. That which must be remembered and that which is so often forgotten, is that these rules are designed to govern the operation of penal institutions not only for the benefit of the prisoners, but also for the effective management of the institution and the protection of society. So long as the minimum requirements of due process are met, the approval of the inmate or his satisfaction with the result of action taken under a rule is not controlling and not required.

    
    

28. No doubt the rule could be better written and no doubt a procedure could be developed which would better provide for the identification of and the resolution of problems arising in the visitor program. What would be an optimum arrangement, however, is not what is legally required and here, there can be little doubt that the rules in question are legal, effective, and proper.

It is, therefore;

ORDERED THAT Harvey Jackson's Petition for Determination of the Invalidity of Existing Rules relating to Section 33-5.006(5) and .007(5), F.A.C., be dismissed.

DONE and ORDERED this 12th day of February, 1987, 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 12th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3889RX

The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By Petitioner Harvey Jackson

1. Accepted as to Petitioner's filing of a grievance which is not supported by the evidence.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted except for the comment that the suspension was unrelated to a visiting rule violation.

6. Accepted in substance.

7. Accepted in substance.

8. Accepted in substance.

By Respondent DOC

1. Accepted.

2. First 4 sentences accepted. Fifth and sixth sentences are recitations of the testimony. Remainder accepted.

3 & 4. Accepted.

1. First 4 sentences are recitations of the testimony. Fifth sentence accepted.

2. First 2 sentences are recitations of the testimony. Remainder of paragraph accepted.

3. Accepted.

COPIES FURNISHED:

Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Douglas L. Adams

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Benjamin E. Poitevent, Esquire Department of Legal Affairs The Capitol - Suite 1601 Tallahassee, Florida 32301

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

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code The Capitol - 1802 Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedure 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: 86-003889RX

Orders for Case No: 86-003889RX