STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARRYL JAMES McGLAMRY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6023RX

) 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 January 23, 1992.

APPEARANCES

For Petitioner: Darryl James McGlamry, pro se

No. 914860, Mail No. 222

Dade Correctional Institution 19000 Southwest 377th Street Florida City, Florida 33034

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 Rule 33-3.002(11), Florida Administrative Code, constitutes an invalid exercise of delegated authority?

PRELIMINARY STATEMENT

On September 23, 1991, the Petitioner filed a Petition for Determination of Validity of Rule. The petition was assigned to the undersigned by Order of Assignment entered September 25, 1991.

On October 2, 1991, an Order to Show Cause was entered ordering the parties to show cause why a hearing was necessary in this case. It was suggested in the Order to Show Cause that the case be disposed of by summary final order after giving the parties an opportunity to file proposed final orders.

On October 11, 1991, the Respondent filed a Motion to Dismiss. The Respondent pointed out in the motion that the Petitioner was raising constitutional issues the undersigned has no jurisdiction to decide and that the

Petitioner was merely alleging that the challenged rule is contrary to Chapter 760, Florida Statutes. By Order entered October 29, 1991, the Motion to Dismiss was granted and the Petitioner was given until November 11, 1991, to file an amended petition.

On November 14, 1991, the Petitioner filed an Amended Petition. In the Amended Petition the Petitioner alleged that the challenged rule is contrary to the Respondent's rule-making authority and is arbitrary and capricious. Based upon the new allegations contained in the Amended Petition a Notice of Hearing was entered December 9, 1991, setting the final hearing of this case for January 23, 1992.

On December 17, 1991, the Respondent filed a Motion to Dismiss Amended Petition. By Order entered January 6, 1992, the motion to dismiss the amended petition was denied.

The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and Phil Welch were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner and the other witnesses who testified during the hearing were located in other Florida cities. The hearing was conducted by a telephone connection between the various locations and the use of speaker telephones.

During the formal hearing the Petitioner testified on his own behalf and presented the testimony of Marta Villacorta, Leslie W. Ryder, Jr. and Phil Welch. Petitioner offered no exhibits. The Respondent presented the testimony of Phil Welch through cross examination of Mr. Welch. The Respondent offered no exhibits.

The parties 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 Petitioner, Darryl James McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections.

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner has challenged the validity of Rule 33-3.002(11), Florida Administrative Code.

      
      

   3. Prior to incarceration, the Petitioner wore his hair in a manner that covered his ears and collar. If allowed to, the Petitioner would continue to wear his hair in the manner he wore it prior to incarceration.

      
      

2. The Respondent.

   
   

   1. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, 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. Rule 33-3.002(11), Florida Administrative Code.

   
   

   1. Rule 33-3.002(11), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides, in pertinent part, the following:

      
      

      (11) Male inmates shall have their hair cut short to medium length at all times with no part of the ear or collar covered. . . .

      
      

   2. The Challenged Rule applies to male, but not female, inmates.

      
      

   3. The Challenged Rule is necessary in order to reduce the ability of male inmates to change their identity by changing their hair style. The Challenged Rule alleviates security problems, including the ability during an escape to alter an inmate's appearance more rapidly by cutting long hair. Long hair can also constitute a security problem because of the ability to hide contraband in it.

      
      

   4. The rationale for the Challenged Rule was explained in the Final Order entered in Redman v. Department of Corrections, DOAH Case No. 84-0598R, April 19, 1984, as follows:

      
      

      Mr. Watson explained the considerations behind forbidding full beards and requiring short haircuts. According to his uncontroverted testimony, uniformity of prisoners' appearance is a desideratum in and of itself. There are health and sanitation problems with longer hair. Many inmates are involved in food preparation. The prison issues toothpaste, but not shampoo. In a fight, long hair can be pulled more readily than short hair. Some inmates work in close proximity to machinery. Although some visitors to the prison have short hair and do not wear beards, it is easier, in general, to distinguish inmates from visitors if the former are all close shorn. (Prison uniforms also help in this regard.) Escapees would be able to alter their appearance more rapidly if they had long hair (by cutting it off) or a beard (by shaving) than if they were put to the trouble of acquiring a wig or a false beard.

      
      

      This is still the Respondent's rationale for the Challenged Rule.

      
      

4. Hair Length for Female Inmates.

1. The Respondent does not have a rule governing female inmate hair length. It is the policy of the Respondent to allow female inmates to wear their hair at a length that is consistent with the community standard for females.

   
   

2. Conditions are imposed by the Respondent on the way female inmates wear their hair. Female inmates are not allowed to wear their hair in what is considered a radical style or to cut designs into their hair. Nor are female

   inmates allowed to wear their hair in a traditionally male style. Radical braiding is also not allowed.

   
   

3. The Challenged Rule is not applied to female inmates because the community standard for female hair styles is different than the community standard for males.

   
   

4. The length that females keep their hair can range from relatively short to below the shoulder.

   
   

5. Like their male counterparts, allowing female inmates to have long hair causes some of the same problems that caused the Respondent to limit the length of male inmate hair styles.

   
   

6. Longer hair for female inmates can create security problems because of the ability to hide contraband and the ability to alter appearances during escape attempts. There are also hygiene problems relating to lice and inadequate shampooing and safety hazards related to female inmates with long hair.

   
   

7. It is easier to handle some of the security problems associated with female inmates hiding contraband because there are only 2,500 female inmates to be searched. There are approximately 43,000 male inmates, making it more difficult to conduct searches of the hair of male inmates who might choose to grow their hair long.

   
   

8. There are significant differences in the manner in which female and male inmates are treated because of the differences in their gender.

   
   

9. It is easier socially for a male inmate to accept short hair. Requiring short hair for males does not create the type of adverse reaction it could cause for many female inmates.

   
   

10. Due to the possible adverse impact and the message it might send to female inmates that they are different from other women in society, requiring short hair for female inmates is not justified by the security, hygiene, safety and other concerns which justify short hair for male inmates.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

11. 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.

       
       

12. The Petitioner has standing to institute the instant action. He is incarcerated by the Respondent and subject to the rules of the Respondent, including the Challenged Rule. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).

    
    

    1. Nature of the Petitioner's Challenge.

       
       

13. 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."

    
    

14. 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.

          
          

15. 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.

    
    

16. In this case, the Petitioner has alleged that Rule 33-3.002(11), Florida Administrative Code, constitutes an "invalid exercise of delegated legislative authority" in violation of Section 120.52(8)(b) and (e), Florida Statutes, because the Department has "has exceeded its grant of rulemaking authority" and because the Challenged Rule is "arbitrary or capricious."

    
    

    1. Burden of Proof.

       
       

17. The burden of proof in this proceeding was on the Petitioner. 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 Rule 33-3.002(11), Florida Administrative Code.

    
    

18. The Petitioner has alleged that Rule 33-3.002(11), Florida Administrative Code, is invalid pursuant to Sections 120.52(8)(b) and (e), Florida Statutes.

    
    

19. Section 120.52(8)(b), Florida Statutes: In the Amended Petition the Petitioner has argued that the Respondent's authority to adopt rules is limited; that the Respondent may not adopt a rule that is contrary to other Florida

    Statutes. In particular, the Petitioner has argued that the Challenged Rule is contrary to Chapter 760, Florida Statutes.

    
    

20. Chapter 760, Florida Statutes, the Human Relation Act of 1977, prohibits discrimination in certain specified situations, i.e., employment and housing. Chapter 760, Florida Statutes, does not apply generally or specifically to the treatment of inmates by the Department of Corrections. Chapter 760, Florida Statutes, does not prohibit the Respondent from adopting the Challenged Rule.

    
    

21. Section 120.52(8)(e), Florida Statutes: The Petitioner has argued that the Challenged Rule is arbitrary and capricious because the rationale for the Challenged Rule also applies to female inmates but the Respondent does not impose the requirements of the Challenged Rule on female inmates. This argument is rejected.

    
    

22. 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 Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 2d DCA 1979).

    
    

23. The evidence in this case proved that there is a logical, reasonable and rational basis for the Challenged Rule. The same conclusion has been reached in at least two other challenges to the Respondent's rules governing hair length. Redman, supra, and Layton v. Department of Corrections, DOAH Case No. 84-0006R, June 12, 1984.

    
    

24. The Petitioner attempted to question the reasonableness of the rationale for the Challenged Rule by suggesting that the same reasons for requiring male inmates to wear their hair short also apply to female inmates. Therefore, the Petitioner suggests, if the Respondent is not requiring female inmates to wear their hair short, there must not be any justification for requiring male inmates to wear their hair short. This argument is rejected.

    
    

25. The Petitioner's position fails to take into account the impact of requiring short hair on female inmates. The potential adverse impact on female inmates of requiring that they maintain short hair is much greater than the potential impact on male inmates. This potential adverse impact on female inmates has to be balanced against the need to insure security, hygiene and safety for female inmates. The Respondent has reasonably concluded that the potential adverse impact on female inmates of requiring short hair outweighs the potential security, hygiene and safety problems. The evidence prove that some of the potential security problems can be dealt with easier by the Respondent because of the significantly lower number of female inmates than male inmates.

    
    

26. The evidence failed to prove that the same potential adverse impact applies to male inmates. Therefore, the need to require short hair to alleviate security, hygiene and safety problems for male inmates outweighs the potential adverse impact to male inmates of short hair.

27. Based upon the foregoing, it is concluded that the Petitioner failed to prove that there is no justification for requiring male inmates to keep their hair short while allowing female inmates to have longer hair.

    
    

28. Conclusion: Based upon the foregoing, it is concluded that the Petitioner failed to prove that the Department "has exceeded its grant of rulemaking authority" or that Rule 33-3.002(11), Florida Administrative Code, is "arbitrary or capricious". Therefore, the Petitioner has failed to prove that Rule 33-3.002(11), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(b) 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 Petitioner's Petition for Determination of Validity of

Rule and Amended Petition are DISMISSED.

DONE and ENTERED this 25th day of February, 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 25th day of February, 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 Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Final Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 4

3-4 2.

5 6.

6 7.

7 10.

8 13.

9-10 8-9.

11 14-15.

12 Not supported by the weight of the evidence.

13 3.

1. Hereby accepted.

2. Not supported by the weight of the evidence.

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

of Fact Number of Acceptance or Reason for Rejection

#914860, Mail No. 222

Dade Correctional Institution 19000 S.W. 377th Street Florida City, Florida 33034

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

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

Louis A. Vargas General Counsel

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: 91-006023RX

Orders for Case No: 91-006023RX