STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE JOHNSON, BUDDY HEMPHILL ) and JAMES McDANIEL, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2392RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

On April 20, 1990, Petitioners, Willie Johnson, David Allen, Buddy Hemphill and James McDaniel, filed a Petition for Administrative Determination of the Invalidity of a Rule which sought to challenge Rule 33-11.0065, Florida Administrative Code. Petitioners alleged that the cited rule was being invalidly applied by the Department of Corrections (Department), had been amended in an ex parte proceeding to which Petitioners were not given an opportunity to be present and to be heard, was enacted as an invalid exercise of delegated authority, and that Petitioners suffer prolonged incarceration because of the foregoing. On April 24, 1990, the matter was assigned to the undersigned for further proceedings as required by law.

Thereafter, on May 8, 1990, the Department filed a Motion to Dismiss Petition and/or in the alternative, Motion for a More Definite Statement. An Order requiring a more definite statement was entered on May 9, 1990.

Petitioners filed a response to that order on June 7, 1990. the matter was scheduled for hearing on August 20, 1990. At the hearing, the Petitioners requested that David Allen be deleted as a petitioner in this case and sought a continuance of the matter so that discovery could be completed and subpoenas might be served on witnesses. At that time, the case was rescheduled for September 17, 1990.

On September 13, 1990, a motion for continuance was filed by the Petitioners which was granted. Thereafter, the Department requested that its motion to dismiss be considered based upon the pleadings in this case and the matters addressed at the hearing on August 20, 1990. Petitioners filed a response to the motion to dismiss on September 25, 1990, and a notice of inquiry regarding the status of this case on November 28, 1990. This order is entered to resolve the pending motion to dismiss.

Section 120.56(2), Florida Statutes, requires that a Petitioner "state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule." In this instance, the thrust of Petitioners' case is that the rule is being implemented disparately among the prisons administered by the Department. Petitioners claim that they are being denied incentive gain time since the prison where they reside awards incentive time differently from another prison which awards incentive time more liberally to its inmates.

Assuming Petitioners' allegations are true and that prisons have internal policies which limit gain time awards, the issue remains as to whether such facts establish the invalidity of the rule or whether such facts suggest that the rule is being implemented improperly.

To challenge the invalidity of the rule Petitioners must allege facts outlining that invalidity. Those facts must set forth more than the language of the statute. Section 120.52(8), Florida Statutes, provides, in part:

1. "Invalid exercise of delegated legislative authority" means action which

   goes beyond the powers, functions, and deities delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

   1. The agency has materially failed to follow the applicable rulemaking procedures set forth in S. 120.54;

   2. The agency has exceeded its grant

      of rulemaking authority, citation to which is required by S. 120.54(7);

   3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by S. 120.54(7);

   4. The rule is vague, fails to establish adequate standards for agency

      decisions, or vests unbridled discretion in the agency; or

   5. The rule is arbitrary or capricious.

In this case, Petitioners' essential factual allegations provide that one prison awards incentive gain time differently than another. Petitioners offer no factual basis for the conclusion that the rule is invalid beyond the conclusion that it must be vague since different facilities interpret and award gain time differently. Consequently, Petitioners argue, the rule must be arbitrary or capricious.

Section 944.09, Florida Statutes, provides, in pertinent part:

(1) The department shall adopt rules governing the administration of the correctional system and the operation of the department, which rules shall relate to: --

* * *

(d) Grievance procedures which shall conform to Title 42, United States Code, s. 1997e.

* * *

(h) Gain-time for good conduct of,

release payments to, and release transportion of inmates.

Section 944.275(4)(b), Florida Statutes, provides: For each month in which a prisoner works diligently, participates in training, uses

time constructively, or otherwise engages in positive activities, the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly.

The courts have held that the award of gain time is optional and is solely a function of the Department. Melvin v. State, 553 So.2d 312 (Fla. 1st DCA 1989); see also State v. Green, 547 So.2d 925 (Fla. 1989). Although the granting or refusal of incentive gain time is discretionary, the Department must uniformly grant or deny incentive gain time unless there is some justification and authority for classifying and treating some prisoners differently from other prisoners. Pettway v. Wainwright, 450 So.2d 1279 (Fla. 1st DCA 1984).

The rule challenge in this case, Rule 33-11.0065, Florida Administrative Code, treats all prisoners similarly. Specifically, the rule provides that inmates eligible for incentive gain time are credited based upon the criteria outlined in subsection (3) of the rule. Subsection (3)(d), provides, in part:

Incentive gain time allows for a range of awards so that the inmate may be recognized for his individual effort.

1. Any inmate assigned full time to work, vocational or educational programs and rated overall "above satisfactory" shall be considered and may be awarded 1 to 8 days gain time. An inmate rated "outstanding" may be awarded 9 to 16 gain time. An inmate may be awarded an additional 0 to 4 days gain time when involved in self-betterment programs and other positive activities including, but not limited to Alcoholics Anonymous, Narcotics Anonymous and Jaycees.

An internal operating procedure of a prison facility is not subject to challenge under the administrative procedures act. Adams v. Barton, 507 So.2d 665 (Fla. 1st DCA 1987). Therefore, the challenged rule constitutes the scope of this review. Petitioners claim, and for purposes of this order it is presumed true, that inmates rated "outstanding" at one prison facility receive 20 days gain time while inmates at another prison who are also rated "outstanding" receive less than the 20 days. Those facts do not establish that the rule is an invalid exercise of legislative authority. Those facts may suggest the basis for a grievance pursuant to Chapter 33-29, Florida Administrative Code, if the institutions are awarding gain time-in a disparate manner, but Petitioners have not alleged sufficient facts from which it could be concluded that the rule fails to pass statutory muster.

Additionally, issues of constitutionality are not the subject for administrative review. The Division of Administrative Hearings does not have jurisdiction to dispose of constitutional issues in a Section 120.56 proceeding Cook v. Florida Parole and Probation Commission, 415 So.21d 845 (Fla. 1st DCA 1982)

In the event Petitioners believe the Department awards gain time inappropriately, Rule 33-29.001, Florida Administrative Code, provides, in part:

(1) The purpose of the grievance procedure is to provide an inmate with a channel for

the administrative settlement of a legitimate grievance. In addition to providing the inmate with the opportunity of having a grievance heard and considered, this procedure will assist the department by providing additional means for internal resolution of problems and improving lines of communication. This procedure will also provide a written record in the event of subsequent judicial or administrative review.

* * *

1. Inmates can grieve the following matters:

   1. The substance, interpretation, and application of policies, rules, and procedures of the facility and department that affect them personally.

In addition to the foregoing, Rule 33-29.013, Florida Administrative Code, which outlines the classifications for grievances, specifies under subsection (8):

Legal-Complaints concerning sentence computation, release dates, gain time, jail time credits, religious, due process. (e.s.)

Thus it is clear that gain time challenges are available via the grievance route.

Based on the foregoing, it is ORDERED:

That the Petition in the above-styled matter, Case no. 90-2392RX, is hereby DISMISSED.

DONE AND ENTERED this 14th day of December, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1990.

COPIES FURNISHED:

Edwin Bayo Linda B. Miles

Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32399-1050

Willie Johnson, #028588

Marion Correctional Institution Post Office Box 158 (1190)

Lowell, Florida 32663

Buddy Hemphill, #765776

Marion Correctional Institution Post Office Box 158 (1190)

Lowell, Florida 32663

James McDaniel, #051305

Marion Correctional Institution Post Office Box 158 (1190)

Lowell, Florida 32663

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 90-002392RX

Orders for Case No: 90-002392RX