STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM VAN POYCK, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4049RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) MIKE RAMADANOVIC, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4914RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

) KENNETH BOUDREAUX, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5239RX

)

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 January 13, 1992.

APPEARANCES

For Petitioner, William Van Poyck, pro se William Van Florida State Prison, No 034071 Poyck: Post Office Box 747

Starke, Florida 32091

For Petitioner, Mike Ramadanovic, pro se

Mike Florida State Prison, No. 076828 Ramadanovic: Post Office Box 747

Starke, Florida 32091

For Petitioner, Kenneth Boudreaux, pro se Kenneth Florida State Prison, No. 097718 Boudreaux: 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 33-3.0081(9)(l), 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, constitute an invalid exercise of delegated authority?

PRELIMINARY STATEMENT Case No. 90-4094R:

On May 30, 1990, the Petitioner in case number 90-4094R, William Van Poyck, filed a Petition for Administrative Determination challenging Rules 33- 3.0081(9)(l), 33-3.0082(9)(i), 33-3.0083(9)(i), and 33-3.0084(1)(n), Florida

Administrative Code. On July 5, 1990, the Director of the Division of Administrative Hearings entered an Order of Dismissal dismissing the petition in case number 90-4049RX.

On July 12, 1990, Petitioner Van Poyck filed a Notice of Appeal. On May 28, 1991, the district court entered an opinion reversing and remanding the dismissal of case number 90-4049RX. William Van Poyck v. Department of Corrections, 580 So.2d 319 (Fla. 1st DCA 1991). The district court's Mandate was filed June 28, 1991, and case number 90-4049RX was assigned to the undersigned.

On August 8, 1991, a Notice of Hearing was entered setting the final hearing for September 26, 1991. On September 19, 1991, Petitioner Van Poyck filed Petitioner's Motion for Continuance of Hearing. This motion was granted by Order entered September 23, 1991. A Second Notice of Hearing was entered on October 9, 1991, setting the final hearing for January 13, 1992.

In August, 1991, Petitioner Van Poyck filed Petitioner's Motion for Leave to File Amended Petition. This motion was granted by Order entered September 4, 1991. Pursuant to the Amended Petition, the challenge to Rule 33-3.0082(9)(i), Florida Administrative Code, was dropped.

On October 17, 1991, the Respondent filed Respondent's Motion to Dismiss in case number 90-4049RX. The motion to dismiss was denied by Order entered October 30, 1991.

Case No. 90-4914RX:

On July 24, 1990, the Petitioner in case number 90-4914RX, Mike Ramadanovic, filed a Petition for Administrative Determination seeking a determination of the invalidity of Rules 33-3.0081(9)(l), 33-3.0082(9)(i), 33- 3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code. This case was dismissed by the Director of the Division of Administrative Hearings by Order of Dismissal entered August 10, 1990.

On August 17, 1990, Petitioner Ramadanovic filed a Notice of Appeal. On May 9, 1991, the district court entered an opinion reversing and remanding the dismissal of case number 90-4914RX. Mike Ramadanovic v. Department of Corrections, 579 So.2d 332 (Fla. 1st DCA 1991). The district court's Mandate was filed October 3, 1991, and case number 90-4914RX was assigned to the undersigned by Order of Assignment entered October 8, 1991.

On September 4, 1991, Petitioner Ramadanovic filed Petitioner's Motion for Leave to be Represented by Other Qualified Representative requesting that Inmate Robert David Roy, #006000, be accepted as his representative. This motion was granted by Order entered October 30, 1991. Prior to the commencement of the final hearing of these cases, it was determined that Inmate Roy had been transferred to the Dade County Jail. Upon contacting Inmate Roy concerning this matter, he indicated that he was unable to participate in the final hearing of these cases. Petitioner Ramadanovic was informed at the commencement of the final hearing of this fact and indicated that he intended to proceed.

Case No. 90-5239RX:

On August 22, 1990, the Petitioner in case number 90-5239RX, Kenneth Boudreaux, filed a Petition for Administrative Determination seeking a determination of the invalidity of Rules 33-3.0081(9)(l), 33-3.0082(9)(i), 33- 3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code. This case was dismissed by the Director of the Division of Administrative Hearings by Order of Dismissal entered August 24, 1990.

On September 14, 1990, Petitioner Boudreaux filed a Notice of Appeal. On July 11, 1991, the district court entered an opinion reversing and remanding the dismissal of case number 90-5239RX. Kenneth Boudreaux v. Department of Corrections, 582 So.2d 763 (Fla. 1st DCA 1991). The district court's Mandate was filed October 3, 1991, and case number 90-5239RX was assigned to the undersigned by Order of Assignment entered October 8, 1991.

The Consolidated Cases:

On September 4, 1991, Petitioner Ramadanovic filed a Motion to Consolidate case number 90-4914RX with case number 90-4049RX. On September 19, 1991, Petitioner Boudreaux filed a Motion to Consolidate case number 90-5239RX with case number 90-4049RX. On October 22, 1991, an Order Granting Motions to Consolidate was entered consolidating all three cases.

On October 29, 1991, the Respondent filed a Motion to Dismiss seeking dismissal of case numbers 90-4914RX and 90-5239RX. This motion was denied by Order entered November 18, 1991.

At the commencement of the final hearing, the parties agreed that all three cases would proceed pursuant to the Amended Petition filed in case number 90- 4049RX.

The formal hearing of these cases was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and Ron Jones 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 their own behalf, and presented the testimony of Paul Decker, S.E. Thompson, Inmate Jimmy Stephens and Ron Jones. Petitioner Van Poyck offered sixteen exhibits. All except exhibit 10 were accepted into evidence to the extent relevant. The Respondent presented the testimony of C.D. Giebig and Mr. Decker. The Respondent offered one exhibit which was accepted into evidence.

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, Mike Ramadanovic and Kenneth Boudreaux, 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 challenged in these cases, Rules 33-3.0081(9)(l), 33-3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code (hereinafter referred to as the "Challenged Rules").

      
      

   3. Petitioner Van Poyck is on death row, which is considered administrative confinement. All exercise privileges for Petitioner Van Poyck have been suspended for almost three years.

      
      

   4. Petitioner Ramadanovic at the time of the final hearing was in close management confinement. All exercise privileges for Petitioner Ramadanovic have been suspended for almost one year.

      
      

   5. Petitioner Bourdreaux at the time of the final hearing was in close management 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 all aspects of the operation of the prison system in Florida.

3. The Challenged Rules.

   
   

   1. Rule 33-3.0081(9)(l), Florida Administrative Code, governs exercise of inmates who have been placed in "administrative confinement". Administrative confinement is the removal of an inmate from the general inmate population for one or more specified reasons. Rule 33-3.0081(1), Florida Administrative Code.

      
      

   2. Rule 33-3.0081(9)(l), Florida Administrative Code, provides the following:

      
      

      (l) Exercise -- Those inmates confined on a 24-hour basis excluding showers and clinic trips may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule shall be implemented to ensure a minimum of two hours per week of exercise out of doors. Such exercise periods shall be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. The superintendent or assistant superintendent may restrict exercise for an individual inmate when the inmate continues to pose a serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates; by involvement in acts which seriously interfere with the staff's daily security functions, or by actions demonstrating an extreme escape risk. Inmates shall be notified in writing of this decision and may appeal through the grievance procedure. The denial of exercise shall be for the shortest length of time to accomplish the goal of safety, security and order within the institution and shall be documented on Form DC4-814. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not compromise the safety or security of the institution.

      
      

   3. Rule 33-3.0083(9)(i), Florida Administrative Code, governs exercise of inmates who have been placed in "close management". Close management is the "long-term single cell confinement of an inmate apart from the general inmate population, where the inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0083(1), Florida Administrative Code.

      
      

   4. Rule 33-3.0083(9)(i), Florida Administrative Code, provides the following:

      
      

      1. Exercise -- Those inmates confined on a 24-hour basis, excluding showers and clinic trips, may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule should be implemented to ensure a minimum of 2 hours per week of exercise outside of cell. Such exercise periods will be documented on the confinement records. Exceptions

         to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. Medical restrictions may also place limitations on the exercise periods.

         Recreational equipment may be available for the exercise period provided such equipment does not threaten the safety or security of the institution.

         
         

   5. Rule 33-3.0084(1)(n), Florida Administrative Code, governs exercise of inmates who have been placed in "disciplinary confinement".

      
      

   6. Rule 33-3.0084(1)(n), Florida Administrative Code, provides the following:

      
      

      (n) Exercise -- Those inmates confined on a twenty- four hour basis (excluding showers and clinic trips) may exercise in their cells. However, if confinement extends beyond a thirty-day period, an exercise schedule should be implemented to ensure a minimum of two hours per week of exercise outside of the cell. Such exercise periods should be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts show that such exercise periods should not be granted. Restrictions may also be placed on the exercise periods by medical staff. The reason for any exercise restrictions shall be documented.

      
      

4. Period of Outdoor Exercise.

1. The Challenged Rules all provide that inmates may exercise in their cells and that "a minimum of two hours per week of exercise outside of the cell" should be provided to inmates in administrative confinement, close management and disciplinary confinement. Unless specified otherwise, all references to "inmates" in this Final Order are to an inmate in administrative confinement, close management or disciplinary confinement.

   
   

2. At Florida State Prison, non-death row inmates subject to the Challenged Rules are given an opportunity to attend one, two-hour exercise session a week. If an inmate misses a session for medical or attorney "call out", a holiday or inclement weather, the session is not made up. The Challenged Rules do not specifically require that missed sessions be made up.

   On their face, the Challenged Rules provide that two hours of exercise should be provided without indicating any exceptions. Rule 33-3.0081(9)(l), Florida Administrative Code, is mandatory: two-hours of exercise must be provided each week.

   
   

3. The amount of time inmates are allowed to exercise is affected by the budget and staff of the Respondent. Because of lack of funds and staff, the Respondent is not able to provide more exercise time to non-death row inmates subject to the Challenged Rules.

   
   

4. At Florida State Prison, a maximum security prison, there are thirteen wings housing inmates. Ten wings house inmates (including four housing inmates on death row) in various types of confinement status. Nine of the ten wings have a separate area, referred to as a "yard", in which inmates may exercise outdoors.

5. There are two correctional officers on duty at each of the yards during the outdoor exercise period for non-death row inmates subject to the Challenged Rules. One sergeant also rotates between the yards. Four to five correctional officers are required to take inmates in and out of the yards. Each inmate must be strip searched, handcuffed with his hands behind his back and then escorted into the yard.

   
   

   1. Exercise Yards.

      
      

6. The Challenged Rules do not specify the size of the area in which outdoor exercise to be provided to inmates. The Challenged Rules also do not specify the number of inmates that may be placed in an area for outdoor exercise.

   
   

7. Yards at Florida State Prison consist of a fenced concrete slab. The yards for non-death row inmates are approximately 24' by 33', or 792 square feet.

   
   

8. Usually 17 inmates are placed in the yard next to the inmates' wing at a time. The number of inmates in the yard on occasion may be 20 to 25. This is the exception, rather than the rule.

   
   

   1. Recreational Equipment.

      
      

9. The Challenged Rules do not require that recreational equipment be provided to non-death row inmates. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, provide that recreational equipment may be available for the exercise period if it does not compromise the safety or security of the institution Rule 33-3.0083(9)(i), Florida Administrative Code, is silent concerning recreational equipment.

   
   

10. Recreational equipment is not provided to inmates during exercise at Florida State Prison. Inmates tend to fight over recreational equipment and to abuse it when it is provided.

    
    

11. In light of the findings of fact, infra, concerning death row inmates, the evidence failed to prove that the failure to provide non-death row inmates with recreational equipment is arbitrary or capricious. Although there is a rational and reasonable reason for not providing recreational equipment to inmates who have proven to be a disciplinary problem (including some death row inmates) the Respondent is evidently prohibited from withholding recreational equipment for death row inmates by court decree. No such decree applies to non- death row inmates.

    
    

    1. Yard Suspension.

       
       

12. The Challenged Rules provide that exceptions to the provision for outdoor exercise may be made "only when clear and compelling facts can document such exercise periods should not be granted." Rule 33-3.0083(9)(i), Florida Administrative Code. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, contain very similar language.

    
    

13. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, do not specify who may decide who is to be denied exercise in the yard, referred to as being placed on the "yard suspension list", or the specific

    reasons for placing an inmate on such a list. The various institutions are given discretion to decide who will place an inmate on the yard suspension list and the reasons for such suspensions.

    
    

14. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, also do not specify the procedures for placing an inmate on the yard suspension list, do not require periodic review of the list, do not specify a maximum period of time an inmate may be on the list and do not specify the conditions which must be met for an inmate to be removed from the yard suspension list.

    
    

15. Rule 33-3.0081(9)(l), Florida Administrative Code, provides who may restrict exercise, requires that there be a "serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates" and other acts, requires that inmates be notified in writing and provides that denial of exercise be for the shortest length of time possible.

    
    

16. There is a list of inmates at Florida State Prison who have been denied yard exercise. Inmates are placed on the yard suspension list because of security problems similar to those specified in Rule 33-3.0081(9)(l), Florida Administrative Code, caused by an inmate.

    
    

17. The procedure for placing an inmate on the yard suspension list is as follows:

    
    

    1. The chief security officer recommends that an inmate be placed on the list.

       
       

    2. The recommendation of the chief security officer is reviewed by a team of senior correctional officers and the superintendent.

       
       

    3. The superintendent makes the final decision of whether an inmate is placed on the yard suspension list.

    
    

18. Any inmate placed on the list is notified in writing and may appeal the decision through the grievance procedure. Chapter 33-29, Florida Administrative Code.

    
    

19. The following procedure is followed to determine whether an inmate is removed from the yard suspension list:

    
    

    1. The list is reviewed monthly by the team of senior correctional officers that recommends the placement of an inmate on the list.

       
       

    2. If an inmate's behavior demonstrates that he has adapted to the institution and is no longer acting out in such a manner to create a security problem, a recommendation is made to the superintendent to remove the inmate's name from the list.

       
       

    3. The superintendent makes the final decision of whether an inmate's name is removed.

    
    

20. Inmates are placed on the yard suspension list for the shortest period of time necessary to accomplish the goal of changing the inmate's behavior and to eliminate the threat to security caused by the inmate.

21. Inmates on the yard suspension list are still allowed to exercise in their cells. Although cells are small and exercise is not necessarily easy in the cells, inmates may do elevated push-ups, step-ups, and jog in place.

    
    

22. There are at any given time approximately 100 inmates at Florida State Prison on the yard suspension list.

    
    

23. Inmates may be kept on the yard suspension list for years. Inmate Jimmy Stephens has been on the yard suspension list since February, 1990, and was previously on the yard suspension list for over fifteen years. Petitioner Van Poyck was placed on the yard suspension list upon his arrival at Florida State Prison on December 28, 1988, and remained on the list until January 7, 1992.

    
    

    1. Death Row Inmates.

    
    

24. Inmates on death row are in administrative confinement and are, therefore, subject to Rule 33-3.0081(9)(l), Florida Administrative Code.

    
    

25. Inmates on death row are provided two, two-hour exercise sessions each week. A total of four hours of exercise.

    
    

26. If an exercise session is missed by a death-row inmate, the session is made up.

    
    

27. The yards provided to death row inmates are larger than the yards provided to non-death row inmates. The yards for death row inmates at Florida State Prison are 71' by 69' (4,899 square feet), 80' by 64' (5,120 square feet), 62' by 91' (5,642 square feet) and 74' by 80' (5,920 square feet).

    
    

28. Approximately 24 to 30 death row inmates are placed in the yard next to the inmates' wing at a time.

    
    

29. Death row inmates are provided with a variety of recreational equipment.

    
    

30. The amount of exercise time, the size of the yards and the amount of recreational equipment provided to death row inmates was agreed to in a consent decree in a federal court proceeding involving the Department of Corrections.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

31. 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.

       
       

32. 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 Challenged Rules. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    1. Nature of the Petitioners' Challenge.

       
       

33. 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."

    
    

34. 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.

    
    

35. 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 specific facts supporting such an allegation.

    
    

36. In this case, the Petitioners have alleged that the Challenged Rules constitutes an "invalid exercise of delegated legislative authority" in violation of Section 120.52(8)(b), (c), (d) and (e), Florida Statutes.

    
    

37. In the amended petition and the proposed final order of the Petitioners, the Petitioners have also alleged that the challenged rules are unconstitutional. 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.

       
       

38. 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.

    
    

39. The Petitioner has alleged that the Challenged Rules are invalid pursuant to Sections 120.52(8)(b), (c), (d) and (e), Florida Statutes.

    
    

40. Section 120.52(8)(b), Florida Statutes: The Petitioners have argued that the Challenged Rules exceed the rule making authority cited for the Challenged Rules, Section 944.09, Florida Statutes.

    
    

41. Section 944.09, Florida Statutes, requires that the Respondent adopt rules relating to:

    
    

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

    2. Disciplinary procedures and punishment.

    . . . .

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

    . . . .

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

    
    

    The authority to regulate exercise of inmates, absent a consideration of constitutional rights, is encompassed within the authority granted by these subsections of Section 944.09, Florida Statutes.

    
    

42. Based upon the broad authority and responsibility granted to the Respondent pursuant to Section 944.09, Florida Statutes, it cannot be said that the Respondent has exceeded its grant of rule making authority in adopting the Challenged Rules.

    
    

43. Section 120.52(8)(c), Florida Statutes: The Challenged Rules are intended to implement Sections 20.315 and 944.09, Florida Statutes. Rules 33- 3.0081 and 33-3.0083, Florida Administrative Code, are also intended to implement Section 945.04(1), Florida Statutes. The Petitioners have argued that the Challenged Rules contravene the specific provisions of Sections 20.315,

    944.09 and 945.04(1), Florida Statutes.

    
    

44. In particular, the Petitioners have argued that the Challenged Rules are contrary to the requirement of: (a) Section 20.315(1)(b), Florida Statutes, that the Respondent "protect society by substituting for retributive punishment methods of training and treatment which correct and rehabilitate offenders who violate laws"; (b) Section 20.315(1)(c), Florida Statutes, which requires "the development of a system of due process and internal legality in institutions"; and (c) Section 20.315(6), Florida Statutes, which requires that inmates be afforded adequate health programs.

45. With regard to Sections 944.09 and 945.04, Florida Statutes, the Petitioners have argued that these provisions are very general provisions which "reveals absolutely nothing to authorize these rules nor can these rules be said to be 'implementing' anything found in this statute."

    
    

46. Based upon a review of the statutes implemented, the Challenged Rules and the evidence presented during the final hearing, it is concluded that the Petitioners have failed to prove that the Challenged Rules enlarge, modify or contravene Sections 20.315, 944.09 or 945.04, Florida Statutes, absent a consideration of the constitutional issues raised by the Petitioners.

    
    

47. Section 120.52(8)(d), Florida Statutes: The Petitioners have argued that the Challenged Rules are vague, fail to establish adequate standards for agency decisions and vest unbridled discretion in the Respondent. In particular the Petitioners list seven specific examples of the "vague and standardless nature of these rules" on pages 34-35 of their proposed final order.

    
    

48. A rule is considered vague and fails 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 rule's meaning and may 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: (a) whether persons of common intelligence are required to guess at the rule's meaning; and (b) whether persons affected by the rule were properly apprised of the rule's effect on them.

    
    

49. A rule vest 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).

    
    

50. In determining whether a rule is vague, fails to establish adequate standards for agency decisions or vests unbridled discretion in the agency, the language of the rule must be given its plain meaning. Boca Raton Artificial Kidney Center v. Department of Health and Rehabilitative Services, 493 So.2d 1055 (Fla. 1st DCA 1986).

    
    

51. Giving the language of the Challenged Rules their plain meaning, it is concluded that the Challenged Rules are not vague. Nor do the Challenged Rules fail to establish adequate standards for Respondent's decisions or vest unbridled discretion in the Respondent.

    
    

52. Section 120.52(8)(e), Florida Statutes: Finally, the Petitioners have argued that the Challenged Rules are arbitrary and capricious. A capricious action has been defined as an action taken without thought or reason or irrationally. An arbitrary action has been defined as one not supported by facts or logic, or despotic. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

53. The Petitioners have suggested that the Challenged Rules are arbitrary and capricious because they allow suspension of outdoor exercise for long periods of time. The evidence failed to support this conclusion. The weight of the evidence failed to prove, absent a consideration of constitutional rights, that the need to insure the security of the institutions does not support suspension of outdoor exercise rights even , on some occasions, for long periods of time.

54. The Petitioners have also argued that the size of the yards and the lack of recreational equipment is arbitrary and capricious. The lack of funds and the abuse of recreational equipment justifies the size of yards and the size of the yards.

    
    

55. Finally, the Petitioners have argued that the lack of guidelines "virtually ensures arbitrary and capricious application of the rules." The weight of the evidence failed to supported this conclusion.

    
    

56. Conclusion: Based upon the foregoing, it is concluded that the Petitioners have failed to prove that the Respondent has exceed its grant of rule making authority or that the Challenged Rules enlarge, modify or contravene the specific provisions of law implemented, are vague, fail to establish adequate standards for agency decisions or vest unbridled discretion in the Respondent or are arbitrary or capricious. Therefore, the Challenged Rules do not constitute an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(b), (c), (d) or (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 the Petitioners have failed to prove that Rules 33-

3.0091(9)(l), 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code,

are an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes, and the Petitioners' Amended Petition is DISMISSED.

DONE and ENTERED this 4th day of March, 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 4th day of March, 1992.

APPENDIX TO FINAL ORDER

The Petitioner in case number 90-4049RX, on behalf of all three Petitioners, and the Respondent 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.

2-5 and 7 Hereby accepted. See the Preliminary Statement of the Final Order.

6 2, 9, 11 and 13.

8 11.

1. See 9 and 13.

2. 29 and hereby accepted. The last sentence is not supported by the weight of the evidence.

3. See 3 and 36. The last sentence is not supported by the weight of the evidence except that the evidence did prove that Petitioner Van Poyck has been on the yard suspension list due to events which occurred before he was incarcerated.

12 4.

13 5.

1. See 36.

2. 17 and hereby accepted.

16 See 17, 20-21 and 40.

17 3 and 37.

18 38-39 and 42.

19 15 and 23.

1. 23 and see 24. The last sentence is not relevant. It was not the Respondent's burden to present proof on this issue. The burden of proof in this proceeding was on the Petitioners.

2. Not relevant. See 24 and 43.

3. Not relevant.

23-24 Hereby accepted.

1. 1 and 2 are hereby accepted. 3 is not supported by the weight of the evidence or relevant.

2. Not relevant.

27 35. See 33-36.

1. See 36. Not relevant.

2. See 25-26, 30 and 32. The last three sentences are not supported by the weight of the evidence.

3. See 27 and 31.

31-32 Not supported by the weight of the evidence. See 25.

1. Not supported by the weight of the evidence. See 25 and 27.

2. See 19. Except for the first sentence, these proposed findings are not supported by the weight of the evidence.

3. See 22. Except for the first sentence, these proposed findings are not supported by the weight of the evidence.

4. See 15.

5. Not a proposed fact.

38-42 Not supported by the weight of the evidence. The testimony concerning these proposed findings of fact was inadequate to prove that the facts are correct.

1. Not supported by the weight of the evidence or not relevant.

2. Hereby accepted.

3. Not relevant. See 31.

The Respondent's 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 2, 8, 10 and 12.

4 3.

5 5.

6 4.

7 Hereby accepted.

8 9, 11 and 13.

9 38.

10 See 20 and 40-41.

11 23.

1. See 43.

2. See 14 and 16. The last sentence is not relevant.

14 18.

15 29.

16 30.

17 28-29.

18 31.

19 32.

20 33.

21 34.

22-24 Hereby accepted.

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

Kenneth Boudreaux #097718

Florida State Prison Post Office Box 747 Starke, Florida 32091

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Claire Dryfuss

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

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

Louis A. Vargas Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Sec. 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.

Docket for Case No: 90-004049RX

Orders for Case No: 90-004049RX