STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL L. HERRICK, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2038RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 29, 1991, in Punta Gorda, Florida.

APPEARANCES

For Petitioner: Jack Dempsey Phillips

Accepted as a qualified representative

#039874

Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 33456

For Respondent: Linda B. Miles

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Rule 33-3.012, Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On March 11, 1991, the Petitioner, Daniel L. Herrick, filed a Petition for Determination of Validity of Existing Rule. In the Petition, Rules 33- 3.012(2)(a), (b) and (d), and 33-3.012(4)(a), Florida Administrative Code, were challenged. The basis under Section 120.52(8), Florida Statutes, for challenging the Rules was not clearly stated in the Petition. Therefore, the Petitioner was asked during the formal hearing to identify the specific portions of Section 120.52(8), Florida Statutes, the challenge was being instituted under. Petitioner indicated that Rule 33-3.012(2)(a) and (b), Florida Administrative Code, was being challenged on constitutional grounds and that all of the challenged rules were being challenged because they violated Section

20.315, Florida Statutes. In an abundance of caution, the issue of whether the challenged rules are arbitrary and capricious will also be considered in this Final Order.

At the formal hearing the Petitioner presented the testimony of Ralph Dale Bass and Glenn Graham. Petitioner offered four exhibits which were accepted into evidence. The Respondent presented the testimony of E. C. Dobson and Henry

1. Ziegler. Respondent also offered three exhibits which were accepted into evidence.

   
   

   The Petitioner has filed a proposed final order 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. The Respondent did not file a proposed order.

   
   

   FINDINGS OF FACT

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent, the Department of Corrections, adopted rules governing the administration of the correctional system in Florida and the operation of the Respondent. Among other things, Section 944.09(1), Florida Statutes, requires that rules be adopted governing operation and management of correctional institutions and mail to and from the state correctional system.

      
      

   2. Section 944.11, Florida Statutes, requires:

      
      

      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 observance of days of religious significance within the institutions and for the proper instruction of the prisoners in their basic moral and religious duties.

      
      

   3. Rule 33-3.012(2)(a) and (b), Florida Administrative Code, provide the following:

      
      

      (2)(a) The amount of reading material, including books, periodicals and other publications that an inmate may store at any one time within his personal living area will be limited to that amount that can be stored without creating a fire, safety, security, or sanitation hazard as determined by the Superintendent. No inmate shall be allowed to receive a book or other publication if he does not have sufficient space to store it.

      (b) Inmates may subscribe to no more than one daily or weekly newspaper and four other periodicals.

      
      

   4. The Petitioner, Daniel L. Herrick, has been allowed to receive one newspaper. Pursuant to Rule 33-3.012(2)(a) and (b), Florida Administrative Code, Petitioner was not allowed to receive another newspaper he requested.

   5. The typical cell at Charlotte Correctional Institution is ten feet six inches by six feet, eight and one-half inches. Two inmates are housed in each cell. There are also two dorms which house 64 inmates each. A dorm is forty feet, eight inches by seventy-one inches. Each inmate in a dorm has a bed and a locker.

      
      

   6. The amount of reading materials inmates are allowed to keep is limited because of the limited space in which inmates are housed. Limiting the amount of reading material an inmate may have reduces fire and sanitation hazards.

      
      

   7. The weight of the evidence failed to prove that Rule 33-3.012(2)(a) or (b), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious.

      
      

   8. Rule 33-3.012(2)(d), Florida Administrative Code, provides:

      
      

      (d) Decisions of the Superintendent or his designee based solely on the provisions of this subsection shall be final and subject to review only through the inmate grievance procedure. Books, periodicals or other publications shall be sent directly from the publishers to the inmate unless otherwise approved by the superintendent. [Emphasis added].

      
      

   9. Books are available to inmates through each institution's library and the State Library of Florida Inmates Library Network, which gives inmates access to most public libraries in Florida, including those at State universities.

      
      

   10. Inmates may also acquire and receive their own books.

       
       

   11. The types of books available to inmates is limited by the Respondent's Policy and Procedure Directive 4.10.50, Admissible Reading Material (hereinafter referred to as "PPD 4.10.50"). PPD 4.10.50 was not challenged by the Petitioner in this proceeding.

       
       

   12. PPD 4.10.50 III. A., governs the types of books an inmate can have access to:

       
       

       1. It is the policy of the Department to allow inmates access to a sufficient amount of constructive and beneficial reading material. Reading material to which inmates have access must be non-subversive in nature as defined by the criteria below, and not compromise the safety or security of the institution, its inmates or staff. Any publication shall be disapproved and may not be received by inmates if it:

          1. Is obscene or contains graphic presentation of sexual behavior that is in violation of the law,

          2. Concerns plans for violation of law or Department or institution rules,

          3. Is dangerously inflammatory in that it advocates or encourages riot, insurrection, escape, disruption of the institution, violence or violation of law or Department or institution rule, the violation of which would present a serious threat to the security, order or rehabilitative objectives of the institution,

          4. Contains information which inmates might use to manufacture or devise weapons, drugs, intoxicants, or escape paraphernalia, or to effect or facilitate escape or disruption of the institution, or

          5. Otherwise presents a clear and substantial threat to the security, order, or rehabilitative objectives of the Correctional System, or to the safety of any person.

             
             

             Decisions applying the above criteria are to be provided in writing to an inmate and may be appealed to a Library Services Council, which is established by PPD 4.10.50.

             
             

   13. Responsibility for determining whether a book meets the criteria of PPD 4.10.50 has been delegated for Charlotte Correctional Institution to Henry

       P. Ziegler, a librarian with the Respondent and the chairman of the Library Services Council. Mr. Ziegler always follows the criteria of PPD 4.10.50 in determining whether an inmate should be allowed to have a particular book.

       
       

   14. Books may be received by an inmate only from a publisher or bookstore for security reasons. It is easier to determine that books received from a publisher or bookstore are what they purport to be. The challenged rule also allows the Superintendent to approve the receipt of books from other sources.

       
       

   15. The Petitioner presented evidence concerning two books which he had requested permission to receive but was denied. According to the Petitioner, the denial was based upon the subject matter of the books and the fact that they were not being sent from a publisher or bookstore. This evidence may be appropriate for a grievance proceeding concerning the application of the challenged rule. This evidence did not prove, however, that the challenged rule is inconsistent with statutory law or that it is arbitrary and capricious.

       
       

   16. The weight of the evidence failed to prove that Rule 33-3.012(2)(d), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious.

   17. Rule 33-3.012(4)(a), Florida Administrative Code, provides: (4)(a) There shall be an Approved

       Periodical List established by the Secretary

       and amended from time to time upon recommendations by the [Library Services] Council. An inmate may subscribe to and receive only those periodicals on such Approved List. The Approved List shall be published at least annually and posted in institution libraries or otherwise made available to inmates. Any additions or

       deletions made between publications shall be likewise posted or made available.

       
       

   18. Rule 33-3.012(4), Florida Administrative Code, and PPD 4.10.50 provide procedures which are to followed by an inmate who desires to have a periodical added to the Approved Periodical List.

       
       

   19. The current Approved Periodical List authorizes inmates to receive almost 1,000 periodicals.

       
       

   20. Any inmate can request that a periodical not currently on the Approved Periodical List be added to the list. Any such request is reviewed by the Library Services Council. The Library Services Council reviews requested periodicals pursuant to the criteria of PPD 4.10.50. The Library Services Council then recommends to the Secretary of the Respondent whether the periodical should be placed on the Approved Periodical List and the Secretary makes the final decision.

       
       

   21. The weight of the evidence failed to prove that Rule 33-3.012(4)(a), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious.

       
       

   22. At all times relevant to this proceeding, the Petitioner was incarcerated and under the custody of the Respondent.

       
       

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56(1), Florida Statutes (1989).

       
       

   24. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules at issue in this proceeding. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

       
       

   25. 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 authority."

       
       

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

       
       

       1. "Invalid exercise of delegated 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.

       
       

   27. 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.

       
       

   28. In this case, the Petitioner has alleged that the challenged rules constitutes an "invalid exercise of delegated authority" in violation of Section 120.52(8)(b) and (c), Florida Statutes. It has also been assumed that the Petitioner believes the challenged rules are arbitrary or capricious under Section 120.52(8)(e), Florida Statutes.

       
       

   29. The burden of proof in this proceeding was on the Petitioner. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

       
       

   30. The weight of the evidence presented by the Petitioner in this case failed to prove that the challenged rules are contrary to Section 20.315, Florida Statutes, or any other provision of Florida Statutes. In fact, the evidence proved that the challenged rules are consistent with the Respondent's responsibilities under Chapter 944, Florida Statutes.

       
       

   31. The weight of the evidence also failed to prove that the challenged rules are arbitrary and capricious. An arbitrary and 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, supra, at 763. The weight of the evidence presented in this proceeding proved that the challenged rules were promulgated with thought and reason and that the challenged rules are supported by facts and logic.

       
       

   32. The Petitioner has also challenged Rule 33-3.012(2)(a), Florida Administrative Code, as unconstitutional. A Hearing Officer has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Long v. DOA, 428 So.2d 688 (Fla. 1st DCA 1983); Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d

153 (Fla. 1982); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

ORDER

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

ORDERED that the Petitioner's Petition for Determination of Validity of Existing Rule is DISMISSED.

DONE and ENTERED this 30th day of July, 1991, 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 30th day of July, 1991.

APPENDIX TO FINAL ORDER

The Petitioner has 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 Respondent did not file a proposed order.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Rejected as a conclusion of law.

2 22.

3-4 Not supported by the weight of the evidence.

5 The Petitioner did file a Petition with the Division of Administrative Hearings. The Petitioner did not, however, raise constitutional issues in his Petition. The only constitutional issue raised by the Petitioner was to Rule 33-3.012(2)(a), Florida Administrative Code, and that challenge was not raised until the commencement of the formal hearing.

COPIES FURNISHED:

Daniel L. Herrick #110128 - Mail #405

Mayo Correctional Institution Post Office Box 448

Mayo, Florida 32066

Jack Dempsey Phillips #039874

Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 33456

Linda B. Miles

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

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Louis A. Vargas General Counsel

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.

Docket for Case No: 91-002038RX

Orders for Case No: 91-002038RX