STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM VAN POYCK, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3286RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) MIKE RAMADANOVIC, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4061RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in these cases before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 19, 1992.

APPEARANCES

For Petitioners: William Van Poyck, pro se

Qualified Representative of Mike Ramadanovic

Florida State Prison, No. 034071 Post Office Box 747

Starke, Florida 32091

For Respondent: Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1300

STATEMENT OF THE ISSUES

Whether Rules 33-3.0084(1)(i)1 and 33-3.005(4)(a) and (b), Florida Administrative Code, constitute an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

The Initial Filing of Case Number 90-3286RX:

On May 29, 1990, a Petition for Administrative Determination was filed by the Petitioner in case number 90-3286RX, William Van Poyck, challenging Rule 33- 3.0084(1)(i)1, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. This Petition was assigned case number 90-3286RX.

On June 5, 1990, the Director of the Division of Administrative Hearings entered an Order of Dismissal dismissing case number 90-3286RX. This Order of Dismissal was appealed by Petitioner Van Poyck.

The Initial Filing of Case Number 90-4061RX:

On June 14, 1990, a Petition for Administrative Determination was filed by the Petitioner in case number 90-4061RX, Mike Ramadanovic, challenging Rule 33- 3.005(4)(a) and (b), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. This Petition was assigned case number 90-4061RX.

On July 5, 1990, the Director of the Division of Administrative Hearings entered an Order of Dismissal dismissing case number 90-4061RX. This Order of Dismissal was appealed by Petitioner Ramadanovic.

Remand of Case Numbers 90-3286RX and 90-4061RX:

On February 22, 1991, the first district court of appeal filed an opinion reversing the dismissal of case number 90-4061RX. A Mandate was filed by the district court on March 13, 1991, remanding case number 90-4061RX for further proceedings consistent with the February 22, 1991, opinion.

On July 23, 1991, the district court filed an opinion reversing the dismissal of case number 90-3286RX. The Mandate in case number 90-3286RX was filed on August 26, 1991.

Case Numbers 90-3287R and 90-4060R:

Two other related cases, 90-3287R and 90-4060R were also filed and dismissed by the Director of the Division of Administrative Hearings in 1990. Case number 90-3287R was filed by Petitioner Van Poyck. Case number 90-4060R was filed by Frankie Lee Bass. These cases were also remanded to the Division of Administrative Hearings after their appeal.

Assignment of the Cases to the Undersigned:

Upon the filing of the Mandate, case numbers 90-3286RX, 90-3287R, 90-4060R and 90-4061RX were reopened and assigned to the undersigned.

On August 28, 1991, case numbers 90-3286RX and 90-3287R were consolidated, sua sponte. On August 29, 1991, a Second Order of Consolidation was entered consolidating case number 90-4061RX with case numbers 90-3286RX and 90-3287R. Finally, on October 22, 1991, case number 90-4060R was consolidated with the other three cases.

Upon the assignment of case number 90-4061RX to the undersigned, a Notice of Hearing was entered setting the formal hearing of that case for September 16, 1991. The formal hearing of the four cases was ultimately rescheduled for December 19, 1991.

Case number 90-3287R was ultimately closed by an Order entered October 29, 1991, based upon a notice of voluntary dismissal filed by Petitioner Van Poyck. Case number 90-4060R was closed by an Order entered October 31, 1991, based a pleading titled "Request to Dismiss" filed by Petitioner Bass.

On September 18, 1991, an Order was entered granting a Motion for Leave to File Amended Petition filed in case number 90-3286RX by Petitioner Van Poyck.

No amended petition was filed in case number 90-4061RX. At the formal hearing the parties indicated that they were proceeding in both cases pursuant to the amended petition in case number 90-3286RX.

An Order Denying Motion to Dismiss which had been filed by the Respondent was entered on November 18, 1991.

The Formal Hearing:

The formal hearing of these cases was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and two witnesses were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioners and the other witnesses who testified during the hearing were located at Florida State Prison in Starke, Florida. The hearing was conducted by a telephone connection between the two locations and the use of speaker telephones.

During the formal hearing the Petitioners testified on his own behalf, and presented the testimony of Paul William Bowe, Jr., Leonard Bean, Jimmy Stephens, Carl Eugene Watts, Simeon Cerdan, Gale Phillip Christy and Ron Jones.

Petitioners offered eleven exhibits, V.P. 1-4 and 8-14. All of Petitioners' exhibits, except V.P. 2, were accepted into evidence. A ruling on the relevancy of all of Petitioners' exhibits was reserved, however. The Respondent presented the testimony of Ron Jones. The Respondent offered one exhibit which was accepted into evidence.

The Petitioners also offered interrogatories and the responses thereto into evidence. On August 29, 1991, an Order to Exchange Exhibits was entered. In the August 29, 1991, Order the parties were ordered to comply with the following procedure concerning exhibits they intended to offer during the formal hearing: "at least seven (7) days prior to the formal hearing of this case, each party shall serve a copy of any exhibit (except for impeachment exhibits) reasonably available to the party that the party intends to offer during the formal hearing of this matter on every other party." The interrogatories and responses thereto had not been served on the Respondent as an exhibit. Therefore the Respondent had assumed that they would not be offered since the Petitioners had not put the Respondent on notice of their intent to offer them and was not prepared to address all of the matters dealt with in the interrogatories and answers thereto. After hearing argument of the parties, the interrogatories and answers thereto were rejected.

Petitioner Van Poyck and the Respondent have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Standing.

   
   

   1. The Petitioners, William Van Poyck and Mike Ramadanovic, are inmates in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioners are subject to the rules of the Respondent, including the rules at issue in this proceeding.

      
      

   3. The rules at issue in this proceeding govern the treatment of inmates while in "disciplinary confinement." At the time of the formal hearing, neither of the Petitioners were in disciplinary confinement. Both Petitioners have, however, been in disciplinary confinement.

      
      

2. The Respondent.

1. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida.

   
   

2. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, inmate conduct, inmate discipline and all other aspects of the operation of the prison system in Florida.

   
   

   C. Rules 33-3.005(4)(a) and (b), and 33-3.0084(1)(i)1,

   Florida Administrative Code.

   
   

3. The Petitioners have challenged Rules 33-3.005(4)(a) and (b), and 33- 3.0084(1)(i)1, Florida Administrative Code (hereinafter referred to collectively as the "Challenged Rules").

   
   

4. Rule 33-3.005(4)(a) and (b), Florida Administrative Code, provides, in pertinent part:

   
   

   (4) . . . .

   Inmates in disciplinary confinement status shall not be allowed to prepare legal documents and legal mail while in that status except under the following conditions:

   1. When there is a time limitation on the filing of legal material with a court and it reasonably appears necessary for the inmate to prepare the same while in confinement status in order to get the same filed within the required time.

   2. When the inmate wishes to prepare legal material to file with a court for the purpose of testing the legality of his disciplinary confinement.

5. The specific statutory authority for Rule 33-3.005, Florida Administrative Code, is Sections 20.315, 944.09 and 944.11, Florida Statutes. The law implemented by Rule 33-3.005, Florida Administrative Code, is Sections

   944.09 and 944.11, Florida Statutes.

   
   

6. Rule 33-3.0084(1)(i)1, Florida Administrative Code, provides, in pertinent part:

   
   

   1. Legal materials shall be accessible to inmates in disciplinary confinement provided such use of legal material is for the purpose of challenging such confinement or in the event there are time restrictions on filing court papers.

   
   

7. The specific statutory authority for Rule 33-3.0084, Florida Administrative Code, is Section 944.09, Florida Statutes. The law implemented by, Rule 33-3.0084, Florida Administrative Code, is Sections 20.315 and 944.09, Florida Statutes.

   
   

8. Chapter 33-22, Florida Administrative Code, titled "Inmate Discipline", specifies what constitutes prohibited conduct for inmates, the procedures for determining if an inmate has violated the rules establishing prohibited conduct and the maximum punishment which may be imposed if an inmate violates the rules establishing prohibited conduct.

   
   

9. The "Rules of Prohibited Conduct" and the maximum punishment for an infraction of these rules are contained in Rule 33-22.012, Florida Administrative Code.

   
   

10. Among other things, an inmate who violates the Rules of Prohibited Conduct, may be placed in "disciplinary confinement" for specified periods of time. The length of time an inmate may be placed in disciplinary confinement for is not to exceed 60 days for any one infraction.

    
    

11. "Disciplinary confinement" is defined in Rule 33-22.002(3), Florida Administrative Code, as:

    
    

    (3) Disciplinary Confinement -- Confinement which includes the loss of privileges normally afforded other inmates and is effected only after procedures outlined in this chapter have been fully complied with.

    
    

12. Although the maximum term of disciplinary confinement is 60 days, it is possible for an inmate to be placed in disciplinary confinement for longer periods of time: (1) an inmate may be convicted of more than one violation of the Rules of Prohibited Conduct and be sentenced to multiple 60-day (or less) sentences to be served consecutively; (2) an inmate may commit another infraction(s) (including a violation of the Challenged Rules) while in disciplinary confinement, resulting in additional disciplinary consecutive confinement sentences; and (3) an inmate may commit an infraction soon after release from disciplinary confinement and be returned to disciplinary confinement.

    
    

13. It is also possible for an inmate to serve less than the full term of his sentence to disciplinary confinement.

14. Being placed in disciplinary confinement is a direct result of the actions of an inmate in failing to follow the established rules of conduct of the Respondent.

    
    

15. At least one inmate has been in disciplinary confinement for periods of up to two and one-half years. An inmate would have to commit a minimum of fifteen infractions to be sentenced to disciplinary confinement for two and one- half years. The evidence failed to prove that the one inmate that has been in disciplinary confinement for two and one-half years was in disciplinary confinement continuously without any break. The inmate could not recall.

    
    

16. The number of inmates in disciplinary confinement for more than one year was not proven. At best, it was proved by the Petitioners that one inmate (Charles William Bowe, Jr.) has served more than one year in disciplinary confinement. Even the evidence concerning Mr. Bowe, however, did not prove that his time in disciplinary confinement was continuous and without any break.

    
    

17. Based upon an estimate of the Respondent, it is likely that no more than 1% of the inmate population (less than 460) is in disciplinary confinement for more than one year.

    
    

18. Although the evidence did not prove that any inmate has actually been in disciplinary confinement for more than two and one-half years, it is not impossible that an inmate could be in disciplinary confinement for an unlimited period of time, as long as the inmate continues to commit violations of the Respondent's Rules of Prohibited Conduct. Although it may be unlikely, it is not impossible for an inmate to be in disciplinary confinement for the entire term of his sentence.

    
    

19. The purpose for placing an inmate in disciplinary confinement and the purpose of the Challenged Rules is to attempt to correct an inmate's demonstrated negative behavior; to eliminate "privileges" inmates normally are given.

    
    

20. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is prohibited from instituting any new litigation (other than a challenge to the decision to place the inmate in disciplinary confinement or litigation which must be instituted within a specified time period) while the inmate is in disciplinary confinement.

    
    

21. Pursuant to Rule 33-3.005(4)(a) and (b), Florida Administrative Code, an inmate who is placed in disciplinary confinement is generally prohibited from preparing legal documents and legal mail unless the inmate is required to meet a time limitation in an existing legal matter or the inmate intends to test the legality of his disciplinary confinement.

    
    

22. When an inmate is placed in disciplinary confinement, all of the inmate's legal materials are confiscated and impounded.

    
    

23. Access to an inmate's legal materials may be obtained while in disciplinary confinement pursuant to the exceptions of the Challenged Rules. At Florida State Prison, access is allowed to an inmate' legal materials if the inmate can show the necessity for those materials through: (1) a court order that requires the inmate to take some action in a pending matter; (2) any other source, i.e., a rule of the court, indicating that the inmate must meet some procedural or other requirement of the court; or (3) if the inmate indicates a desire to prepare a challenge to the legality of his disciplinary confinement.

24. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to the inmate's legal materials is as follows:

    
    

    1. The inmate makes a request to an institutional counselor assigned responsibility for the inmate;

       
       

    2. The inmate must indicate to the institutional counselor why one of the exceptions provided in the Challenged Rules allowing access to his legal materials applies;

       
       

    3. If the institutional counselor is convinced that one of the exceptions applies, access to the inmate's legal materials is allowed. If not, no access is allowed;

    
    

25. The procedure followed at Florida State Prison if an inmate convinces an institutional counselor that access to his legal materials should be allowed is as follows:

    
    

    1. The institutional counselor retrieves the inmate's legal materials and brings them to the inmate's cell;

       
       

    2. In some instances the institutional counselor may give the legal materials to the inmate or require the inmate to describe to the counselor, and convince the counselor of, what materials he actually needs to meet the deadline or to challenge his disciplinary confinement; and

       
       

    3. The institutional counselor, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he then must convince the counselor of what additional materials are needed.

    
    

26. If an inmate is denied access to his legal materials or is not provided with the materials he needs, the inmate may challenge the decision of the institutional counselor by filing a grievance.

    
    

27. Based upon the experiences of the inmates who testified in this proceeding, requests for access to an inmate's legal materials may be granted or denied, and when granted, an inmate may be given the whole file, he may be denied materials, he may be asked "is this it" and he may get only the materials he actually needs. Institutional counselors may even make more than one attempt to find the requested materials.

    
    

28. Pursuant to Rule 33-3.0084(1)(i)1, Florida Administrative Code, an inmate may not have access to any legal materials except to the extent necessary for the inmate to meet a time limitation in an existing legal matter or if the inmate intends to test the legality of his disciplinary confinement.

    
    

29. Access to legal materials in the library may generally be obtained by inmates. Such access is not, however, without limitation. There are limitations on the procedure which must be followed to obtain access to the library and the amount of materials which may be obtained at any one time.

30. An inmate in disciplinary confinement is further limited as to when and how he may access library resources pursuant to the Challenged Rules. At Florida State Prison, access is allowed to library legal materials only if an inmate can show the necessity for those materials in the same manner an inmate may obtain access to his own legal materials as explained in finding of fact 26.

    
    

31. The procedure followed at Florida State Prison for an inmate in disciplinary confinement to obtain access to library legal materials is as follows:

    
    

    1. The inmate must make a request in writing to the librarian;

       
       

    2. The inmate must indicate to the librarian why one of the exceptions to the lack of access to library legal materials applies;

       
       

    3. If the librarian is convinced that one of the exceptions applies, access to the library's legal materials is allowed. If not, no access is allowed;

    
    

32. The librarian, based upon the inmate's description of the materials he needs, makes the final determination of what materials may actually be given to the inmate. If the inmate does not get the materials he needs, he may make additional requests.

    
    

33. If an inmate is denied access to library legal materials or is not provided with the materials he needs, the inmate may challenge the decision by filing a grievance.

    
    

34. Institutional counselors and librarians are not required to have legal education or training.

    
    

35. The evidence failed to prove that any inmate has been totally denied access to the courts by the proper application of the Challenged Rules. The evidence proved that the Challenged Rules are inconvenient and aggravating to some inmates who have experienced the procedures which must be followed in order to obtain access to the inmate's legal materials or library legal materials.

    The procedures can be a hinderance to an inmate's pursuit of litigation to the extent that the procedures are one more step an inmate must follow that the inmate would not otherwise have to follow if he were not in disciplinary confinement.

    
    

36. The evidence proved that, although inconvenient, some of the inmates who testified were able to pursue litigation even though they have been in disciplinary confinement at times. There was some aggravation and frustration caused those inmates who testified because of the Challenged Rules, but the evidence failed to prove that any of the inmates who testified or any other inmates were actually prevented from pursing litigation:

    
    

    1. Inmate Bowe, who has served two and one-half years of disciplinary confinement (although it was not proved whether the time was without interruption because of Inmate Bowe's memory lapse), had several court proceedings (Florida and federal) pending at the time of the formal hearing and did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the Challenged Rules;

    2. Leonard Bean, another inmate who testified, has served 140 to 150 days in disciplinary confinement for multiple infractions. Although Inmate Bean testified that his co-defendant's conviction had been reversed (in February, 1991), the evidence failed to prove that Inmate Bean's conviction would have also been reversed but for his disciplinary confinement or, more importantly, would have also been reversed but for the Challenged Rules. Although Inmate Bean was released from disciplinary confinement in May, 1991, he still had not filed for habeas corpus as of the date of the formal hearing;

       
       

    3. Jimmy Stephens, another inmate who testified, has served 240 days of disciplinary confinement for four infractions during the past two years. Although inconvenienced by the limitation on library legal material use, Inmate Stephens did not indicate that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue;

       
       

    4. Carl Watts, another inmate who testified, served 180 days in disciplinary confinement prior to being transferred to Florida State Prison and another 60 days after arriving at Florida State Prison. Inmate Watts' testimony concerning a possible habeas corpus action failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue;

       
       

    5. Petitioner Ramadanovic has served up to 100 days in disciplinary confinement. Although he filed two grievances dated August 22, 1990, concerning his efforts to file a brief in an appellate court proceeding, his disciplinary confinement ended August 23, 1990, and therefore, he failed to prove that he was prevented from filing a brief or any other pleading in any case pending while he was in disciplinary confinement. The evidence also failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue;

       
       

    6. Petitioner Van Poyck failed to prove that he has missed any court ordered or procedural time limit or that any case has been dismissed because of an inability to prosecute his cases caused by the rules at issue.

    
    

37. As long as an inmate is in disciplinary confinement, that inmate may not file an action for federal habeas corpus.

    
    

38. An inmate in disciplinary confinement may also not file an action for habeas corpus in the State courts until some, unspecified date, which the Respondent determines is close enough to necessitate preparation of the pleadings in order to meet the time limitations on habeas corpus in Florida.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

39. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1991).

    
    

    1. Standing.

40. The Petitioners have standing to institute the instant action. They are incarcerated by the Respondent and subject to the rules of the Respondent, including the rules at issue in this proceeding. See Department of Corrections

    v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    
    

    1. Nature of the Petitioners' Challenge.

       
       

41. The only appropriate challenge to an existing rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.56, Florida Statutes. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated legislative authority."

    
    

42. What constitutes an "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties 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 vest unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

43. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the facts supporting such an allegation.

    
    

44. In this case, the Petitioners have alleged that Rules 33-3.005(4)(a) and (b), and 33-3.0084(1)(i)1, Florida Administrative Code, constitute an "invalid exercise of delegated legislative authority" in violation of Sections 120.52(8)(b), (c), (d) and (e), Florida Statutes.

    
    

    1. Constitutional Issue.

       
       

45. In the Amended Petition and the proposed final order filed by Petitioner Van Poyck, it has been alleged that the Challenged Rules are unconstitutional because they limit an inmate's meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977). A Hearing Officer has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); Long v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    1. Burden of Proof.

       
       

46. The burden of proof in this proceeding was on the Petitioners. Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850 (Fla. 1st DCA 1989); Department of Administration, Division of Retirement v. Albanese, 455 So.2d 639 (Fla. 1st DCA 1984); and Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

    1. The Validity of the Challenged Rules.

    
    

47. The Petitioners have alleged that the challenged rules are invalid pursuant to Sections 120.52(8)(b), (c), (d) and (e), Florida Statutes.

    
    

48. Section 120.52(8)(b) and (c), Florida Statutes: The specific statutory authority for Rule 33-3.005, Florida Administrative Code, is Sections 20.315, 944.09 and 944.11, Florida Statutes. The specific statutory authority for Rule 33-3.0084, Florida Administrative Code, is 944.09, Florida Statutes.

    
    

49. The specific law implemented by Rules 33-3.005 and 33-3.0084, Florida Administrative Code, is Section 944.09, Florida Statutes. Additionally, Rule 33-3.005, Florida Administrative Code, implements Section 944.11, Florida Statutes, and Rule 33-3.0084, Florida Administrative Code, implements Section 20.315, Florida Statutes.

    
    

50. Section 944.09, Florida Statutes, authorizes the Respondent to "adopt rules governing the administration of the correctional system and the operation of the department . . . ." In particular, rules adopted by the Respondent are required to relate to several specified subjects, including the following:

    
    

    1. The rights of inmates.

    2. the rules of conduct to be observed by inmates and the categories of violations according to degrees or levels of severity, as well as degrees of punishment applicable and appropriate to such violations.

    3. Disciplinary procedures and punishment.

       . . . .

       (r) Such other rules as in the opinion of the department may be necessary for the efficient operation and management of the correctional system.

       
       

51. Section 20.315, Florida Statutes, creates the Department of Corrections and sets out, among other things, the purpose of the Respondent:

    
    

    (b) To protect society by substituting for retributive punishment methods of training and treatment which correct and rehabilitate offenders who violate laws.

    . . . .

    (h) To provide the necessary level of security in institutions.

    Section 20.315, Florida Statutes, includes other purposes of the Respondent which must be balanced in determining whether the Challenged Rules are invalid:

    
    

    (c) 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 institutions.

    
    

52. Finally, Section 944.11, Florida Statutes, provides the following:

    
    

    The department shall adopt such regulations as it may deem proper governing the admission of educational and other reading matter within the state institutions for the use of the prisoners, and for the proper observation of days of religious significance within the institutions and for the proper instruction of the prisoners in their basic moral and religious duties.

    
    

53. The authority delegated to the Respondent in the foregoing statutory provisions and the laws to be implemented are broad. These provisions should not be interpreted, however, to vest in the Respondent unbridled discretion. The Legislature intended that the Respondent take actions which are reasonable in carrying out its authority and implementing the laws it is charged with implementing. The Legislature did not intend for the Respondent to act in an arbitrary or capricious manner. As discussed further, infra, the manner chosen

    by the Respondent to carry out its responsibilities is arbitrary and capricious. Therefore, the Challenged Rules also exceed the specific authority for the Challenged Rules contained in Sections 20.315, 944.09 and 944.11, Florida Statutes, and the Challenged rules enlarge the specific provisions of law implemented.

    
    

54. Based upon the foregoing, it is concluded that the Challenged Rules exceed the Respondent's grant of rulemaking authority and enlarge, modify or contravene the specific provisions of law implemented.

    
    

55. Section 120.52(8)(d), Florida Statutes: A rule may be considered to be vague or to fail to establish adequate standards for agency decisions when the terms of the rule are so vague that persons of common intelligence must necessarily guess at the rules's meaning and differ as to the rule's application. State v. Cumming, 365 So.2d 153 (Fla. 1978). In City of St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982), the following test was applied to determine whether a rule was vague: (1) whether persons of common intelligence are required to guess at the rule's meaning; and (2) whether persons affected by the rule were properly apprised of the rule's effect on them.

    
    

56. A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, 125 So.2d 749 (Fla. 1960).

    
    

57. In the proposed final order filed by Petitioner Van Poyck, it has been argued that the Challenged Rules are vague and fail to establish adequate standards for agency decisions and vest unbridled discretion in the agency because of "their lack of specificity and criteria render them invalid." [Footnote omitted]. In particular, it has been argued in footnote 5 of

    Petitioner Van Poyck's proposed final order that the Challenged Rules are invalid because of the following:

    
    

    The rules fail to designate which staff members will be responsible for making the critical decisions [has the inmate proven he has a "deadline"; if so, how much of his legal property may he retrieve] and the staff members who presently do make these decisions are untrained in law. This lack of standards allows, and probably ensures, an arbitrary and capricious application of these rules.

    
    

    These allegations do not support a conclusion that the Challenged Rules come within the definition of an invalid exercise of delegated legislative authority found in Section 120.52(8)(d), Florida Statutes.

    
    

58. Section 120.52(8)(e), Florida Statutes: An arbitrary or capricious action has been defined as follows:

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.

Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 2d DCA 1979), cert. den., 376 So.2d 74.

62. Rules 33-3.005(4)(a) and (b) and 33-3.0084(1)(i)1, Florida Administrative Code, were promulgated with some thought and reason. The Challenged Rules were adopted as part of the effort to correct an inmate's demonstrated negative behavior by depriving the inmate of privileges inmates normally are given until the negative behavior is eliminated.

1. In light of the severity of the possible limitation on an inmate's right to access to the courts, it is concluded that the amount of thought and reason put into the Challenged Rules was insufficient and that the Challenged Rules are not supported by facts and logic. Although a remote possibility, it is not impossible under the Challenged Rules for an inmate to be prohibited from filing some actions for habeas corpus. Additionally, it is not a remote possibility that inmates can be deprived of the right to institute actions for habeas corpus and other legal actions for long periods of time. Although the Respondent may, and indeed, must, take action to insure discipline and acceptable behavior of individuals who have in many cases evidenced a lack of discipline and acceptable behavior, there are limitations on the extent to which the Respondent may act. Especially when the Respondent is depriving an inmate of certain fundamental rights. For example, facts and logic would not support depriving an inmate of nourishment in order to correct an inmate's demonstrated negative behavior. Likewise, regardless of the constitutionally of the Respondent's actions in limiting inmates' access to the courts, the actions of the Respondent in depriving inmates of the right to file habeas corpus and other court proceedings is arbitrary and capricious.

   
   

2. Conclusion: Based upon the foregoing, it is concluded that the Petitioners have proved that the Challenged Rules exceed the Respondent's grant of rulemaking authority, enlarge, modify and contravene the specific provisions of law implemented, and are arbitrary and capricious. Therefore, the Challenged

Rules constitute an invalid exercise of delegated authority pursuant to Section 120.52(8)(b), (c) and (e), Florida Statutes, in violation of Section 120.56, Florida Statutes.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that Rules 33-3.005(4)(a) and (b) and 33-3.0084(1)(i)1, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes.

DONE and ENTERED this 27th day of January, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

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 27th day of January, 1992.

APPENDIX TO FINAL ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioners' Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 Hereby accepted.

3 6.

1. See 7 and 23.

2. See 9 and 31.

6 See 18-21.

7 15.

8 Cumulative and unnecessary.

9 13 and 15.

10 3.

11 25.

12 7, 9, 24 and 26-28.

13 Not relevant. See 7 and 9.

14 27-28.

15-17 See 27-28.

18 See 37. Whether institutional counselors are in fact not educated or trained in law was not proved by the weight of the evidence.

19 See 27-30.

20 Not supported by the weight of the evidence.

21-22 31 and 33-34.

23 See 37.

24 See 40-41.

1. Not supported by the weight of the evidence.

2. See 22.

3. See 21. Inmate Bean's testimony did not prove the proposed facts proposed concerning him. See 39b.

28-29 Not supported by the weight of the evidence.

30 See 19-20.

31-32 See 8 and 10.

33 Not relevant.

34-35 Not supported by the weight of the evidence.

36 Not relevant. The burden of proof in this case was on the Petitioners.

The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1-2 1.

2 6-7 and 9.

3 3.

4 See 18, 21 and 39a.

5 See 39a.

6 See 27-28 and 30.

7 39b.

8 39c.

9 39d.

10 39e.

11 See 27-30.

12 See 27-30 and 39f.

13 See 31 and 33.

15 See 13, 15 and 22.

16 27-28.

COPIES FURNISHED:

William Van Poyck #034071

Florida State Prison Post Office Box 747 Starke, Florida 32091

Mike Ramadanovic #076828

Florida State Prison Post Office Box 747 Starke, Florida 32091

Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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

Harry K. Singletary, Jr. Secretary

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF CORRECTIONS NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 92-560

DOAH CASE NO. 90-3286RX

WILLIAM VAN POYCK and MIKE RAMADANOVIC,

Appellee.

/ Opinion filed December 29, 1992.

An Appeal from an Order of the Division of Administrative Hearings.

Robert A. Butterworth, Attorney General; Claire D. Dryfuss, Assistant Attorney General, Tallahassee, for Appellant.

William Van Poyck and Mike Ramadanovic, Pro Se, for Appellees.

SHIVERS, Judge.

The Florida Department of Corrections ["Department"], Respondent below, appealed a final order following a section 120.56, Florida Statute. (1991), proceeding, in which the hearing officer held invalid two administrative rules that limit a prison inmate's access to legal documents and to other legal materials while the inmate is in disciplinary confinement. Appellees Van Poyck and Ramadanovic, Petitioners below, who are prison inmates currently, do not dispute the finding of an invalid exercise of delegated legislative authority. However, they cross-appealed the portion of the final order that had rejected their challenge to the rules pursuant to section 120.52(8)(d) Florida Statutes (1991). Because we conclude that Appellees failed to demonstrate the prerequisites for standing, in the original proceeding, to challenge the alleged invalid rules governing inmates in disciplinary confinement, we must also set aside the final order in accordance with the review provisions of section 120.68(9), Florida Statutes (1991). LeDew v. Unemployment Appeals Comm'n, 456 So.2d 1219, 1221-22 (Fla. 1st DCA 1984). We reverse the final order, on the authority of Florida Dep't of Offender Rehb. v. Jerry, 353 So.2d 1230 (1st DCA), cert. den., 359 So.2d 1215 (Fla. 1978)(inmate failed to meet threshold requirement of standing by failing to show injury accompanied by continuing present adverse effects). Because Van Poyck and Ramadanovic lacked standing below to challenge the rules, we need not address the primary questions raised

concerning the validity of the rules. Jerry, 353 So.2d at 1232. In light of our disposition of the Department's appeal on the issue of standing, we cannot review Van Poyck's and Ramadanovic's cross-appeals concerning the same rules.

Appellees challenged Rules 33-3.0084(1)(i)1 and 33-3.005(4), Florida Administrative Coded in their petitions for administrative determination. The dismissals of the two petitions were appealed separately, and the orders were reversed and remanded, either for entry of an order specifically stating grounds warranting dismissal or for further proceedings on the petitions pursuant to section 120.56(2). See Van Poyck v. Fla. Dep't of Corrections, 580 So.2d 319 (Fla. 1st DCA 1991); Ramadanovic v. Dep't of Corrections, 575 So.2d 1333, 1335 (Fla. 1st DCA 1991). Eventually, Appellees' cases were consolidated by the hearing officer. Rule 33-3.0084(1)(i)1 covers disciplinary confinement and states:

1. Confinement Facilities and Conditions.

   * * *

   1. Legal Access.

1. Legal material shall be accessible to inmates in disciplinary confinement provided such use of legal material is for the purpose of challenging such confinement or in the event there are time restrictions on filing court papers.

Rule 33-3.005(4) deals with legal documents and legal and privileged mail and provides:

(4) Preparation of legal document and legal mail

shall only be permitted during inmate's off duty time. If a separate area is designated, it must be available for use a reasonable number of hours each week and inmates shall be allowed to go to such place during scheduled periods as soon as practicable after receipt of their request to do so.

Inmates in disciplinary confinement status shall not be allowed to prepare legal documents and legal mail while in that status except under the following conditions:

1. When there is a time limitation on the filing of legal material with a court and it reasonably appears necessary for the inmate to prepare the same while in confinement status in order to get the same filed within the required time.

   
   

2. When the inmate wishes to prepare legal material to file with a court for the purpose of testing

the legality of his disciplinary confinement.

Section 120.56(1), Florida Statutes (1991), provides that "[a]ny person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." Subsection (2) of that statute requires the

written petition to "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."

Regarding the threshold issue of Appellees' standing as petitioners, the final order includes these findings of fact: 1) Appellees are inmates in the Department's custody. 2) Appellees are subject to the Department's rules. 3) The rules at issue govern the treatment of inmates while in disciplinary confinement. 4) At the time of the formal hearing, neither Appellee was in disciplinary confinement. These findings are supported by competent substantial evidence. Section 120.68(10), Florida Statutes (1991). Pursuant to Rule 33- 22.002(3), Florida Administrative Code, "disciplinary confinement" is "[c]onfinement which includes the loss of privileges normally afforded other inmates and is effected only after procedures outlined in this chapter have been fully complied with." The hearing officer concluded, as a matter of law, that "Petitioners have standing to institute the instant action. They are incarcerated by the Respondent and subject to the rules of the Respondent, including the rules at issue in this proceeding. See Department of Corrections

v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984)." Having reviewed the final order, the evidence presented at the hearing, and related documents including the petitions, we must set aside the final order because Van Poyck and Ramadanovic failed to meet the statutory and decisional requirements for standing below to challenge the administrative rules at issue. Section 120.68(9), Florida Statutes (1991).

In Sumner, the appellees were prison inmates who had petitioned for a section 120.56 determination of whether an interoffice memorandum issued by the prison's superintendent was invalid. The directive had provided that, effective as of a certain date, inmates would no longer be permitted to receive visitors on both Saturday and Sunday of the same week. The Department challenged the petition on the ground that the appellees had no standing to challenge the rule because they were not "substantially affected parties." The hearing officer decided in favor of the inmates on the issue of standing and held that the cause involved an invalid exercise of delegated legislative authority. We affirmed the final order. Id. at 1391-92.

In contrast to the inmates in Sumner, however, Van Poyck and Ramadanovic have not demonstrated that they sustained, or are in immediate danger of sustaining, some direct injury as a result of the challenged rules. See O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 36 L.Ed. 2d 674

(1974)(plaintiffs in class action against law enforcement officers for injunctive relief failed to show direct injury from alleged patterns of conduct in the administration of criminal justice). The Court in O'Shea stated that, although counsel during argument said that some of the plaintiffs had suffered from past unconstitutional treatment, such prior exposure to illegal conduct will not of itself demonstrate the requisite present case for injunctive relief, absent ongoing adverse effects. 414 U.S. at 495-96, 94 S.Ct. at 676; Jerry, 353

So.2d at 1235.

The effect of the superintendent's pronouncement in Sumner was felt almost immediately, and the change in prison policy had an actual injurious impact upon the entire inmate population. Thus, the inmates there were substantially affected by the agency's action. 447 So.2d at 1391. See Professional Firefighters of Fla. Inc. v. Dep't. of Health & Rehab. Serv., 396 So.2d 1194 (Fla. 1st DCA 1981)(reversing order that had dismissed association's petition for lack of standing, where the challenged departmental rules regulating the

licensing of paramedics substantially affected individual members of the association by rendering their continued employment as paramedics unlawful without compliance with licensing requirements).

The case sub judice is more similar to Jerry, 353 So.2d at 1230, where the inmate petitioner challenged the administrative rule setting forth the procedure by which an inmate is subjected to disciplinary confinement and forfeiture of gain-time. Like Appellees, the petitioner in Jerry had been in disciplinary confinement in the past but no longer remained in that status when the hearing was held. In Jerry, we determined that the hearing examiner never should have reached the merits of the rule invalidity issue because the petitioner had failed to meet the threshold requirement of standing. Id. at 1232. We based our holding on O'Shea and other decisions requiring that the injury or threat of injury be real and immediate rather than conjectural or hypothetical. The order was reversed, because Jerry had failed to demonstrate, at either the time of filing the petition or the time of the hearing, that his existing prison sentence had been subjected to loss of gain-time, or that he otherwise had sustained any injury accompanied by "continuing, present adverse effects." Id. at 1235-36. Just as Jerry failed to show a loss of gain-time, Van Poyck and Ramadanovic failed to show any direct and specific injury with a continuing present adverse effect, such as the prevention of their filing any new litigation, the missing of deadlines, or the dismissal of their cases. The mere fact that Cross-Appellants are incarcerated and are subject to the Department's rules does not meet the prerequisites for standing where the challenged rules deal with restrictions arising from placement in disciplinary confinement.

The policy underlying our decision is akin to that addressed by the Second District Court in Agrico Chem. Co. v. Dep't of Environ. Reg., 406 So.2d 478 (2d DCA 1981), rev. den., 415 So.2d 1359 (Fla. 1982), which concerned a section

120.57 proceeding governing decisions that affect substantial interests. Our sister court stated:

Before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section

120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury. Id. at 482.

The test for standing presented in Professional Firefighters is analogous to the injury-in-fact standard in Agrico Chemical. Village Park Mobile Home Ass'n, Inc. v. State Dep't of Bus. Reg., 506 So.2d 426, 432 (Fla. 1st DCA 1987)(on mot. for reh'g)(petitioner can satisfy injury-in-fact standard by demonstrating either that he had sustained actual injury at the time of filing the petition, or that he is immediately in danger of sustaining some direct injury as a result of the challenged action); Department of Bus. Reg. v. Martin County Liquors, Inc., 574 So.2d 170, 173 (Fla. 1st DCA 1991).

Van Poyck and Ramadanovic rely on language from the Florida Supreme Court's decision in Florida Home Builders Ass'n v. Dep't of Labor & Employment Security,

412 So.2d 351, 354 (Fla. 1982), to suggest that Jerry is no longer sound law. We note that the pertinent language in the subsequent opinion disapproved our

holding in Jerry only to the extent that it conflicted with the supreme court's views regarding another aspect of standing not involved here. See 412 So.2d at 353-54.

The final order of the hearing officer is REVERSED. SMITH and KAHN, JJ., CONCUR.

M A N D A T E

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, Larry J. Sartin Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

WILLIAM VAN POYCK

vs.

DEPARTMENT OF CORRECTIONS Case No. 92-560

/

MIKE RAMADANOVIC Your Case No. 9O-3286RX & 90-4061RX

vs.

DEPARTMENT OF CORRECTIONS

/

The attached opinion was rendered on December 29, 1992,

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James E. Joanas

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee the Capitol, on this 5th day of March, 1993.

Clerk, District Court of Appeal of Florida,

First District

Docket for Case No: 90-003286RX

Orders for Case No: 90-003286RX