STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GERRY HARGROVE, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 91-7847RP
)
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 3, 1992.
APPEARANCES
For Petitioner: W. Gerry Hargrove, No. 110941, pro se
Tamoka Correctional Institution 3950 Tiger Bay Road
Daytona Beach, Florida 32214
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 a proposed amendment to Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
PRELIMINARY STATEMENT
On December 4, 1991, the Petitioner filed a Petition Requesting Administrative Determination of the Invalidity of Proposed Rule Amending Section 33-5.006 (hereinafter referred to as the "Petition"). The Petition was assigned to the undersigned by Order of Assignment entered December 6, 1991. The final hearing was scheduled for January 3, 1992, by Notice of Hearing entered December 9, 1991.
On December 11, 1991, the Respondent filed a Motion to Dismiss for Lack of Jurisdiction. It was alleged that the Petition in this case was not filed within twenty-one days after publication of notice of the proposed rule amendment being challenged. The Petitioner filed a response in opposition of the Motion.
On December 18, 1991, the Petitioner filed a Petition Requesting Repeal of Proposed Rule Amending Section 33-5.006. A Motion to Dismiss the December 18, 1991, petition was filed by the Respondent on December 19, 1991.
Prior to the final hearing of this case the parties were informed that the Motion to Dismiss for Lack of Jurisdiction was denied and the Motion to Dismiss Petition Requesting Repeal of Proposed Rule Amending Section 33-5.006 was granted. An Order Denying Motion to Dismiss for Lack of Jurisdiction and Granting Motion to Dismiss Petition Requesting Repeal of Proposed Rule Amending Section 33-5.006 was entered on January 6, 1992.
The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Department of Corrections, and a witness, Ron Jones, were located in a public hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner, W. Gerry Hargrove, was located at Tamoka Correctional Institution in Daytona Beach, Florida. The hearing was conducted by a telephone connection between the two locations and the use of speaker telephones.
During the formal hearing the Petitioner testified on his own behalf, and presented the testimony of Ron Jones. Petitioner offered no exhibits. The Respondent presented its case through the testimony of Ron Jones. 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
Standing.
The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is housed in Tamoka Correctional Institution.
The Petitioner is subject to the rules of the Respondent, including the proposed rule amendment at issue in this proceeding.
The Respondent.
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.
Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing visiting hours and privileges and all other aspects of the operation of the prison system in Florida.
The Proposed Amendment to Rule 33-5.006(8), Florida Administrative Code.
Section 944.23, Florida Statutes, provides, in pertinent part:
The following persons shall be authorized to visit at their pleasure all state correctional institutions:
The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. . . . [Emphasis added].
Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code.
Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following:
Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made.
Rule 33-5.006(7), Florida Administrative Code, provides:
(7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere.
Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code.
Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides:
(3) No visit should be denied:
. . . .
(c) for any reason unrelated to the security, order or rehabilitative objectives of the institution.
At issue in this proceeding is a proposed amendment to Rule 33- 5.006(8), Florida Administrative Code:
(8)(a) An unmarried i[I]nmate[s] [not married] may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval.
A married inmate may be allowed to have one single, non-immediate family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list.
Married or unmarried inmates may have non- immediate family member couples on the visiting list after approval, but the member of the couple who is the opposite sex of the inmate may not visit the inmate without the spouse.
New proposed language of the rule is denoted by underlining and words or letters removed are indicated by brackets.
In this proceeding the Petitioner has only challenged proposed paragraph (c) of Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Proposed Rule Amendment").
The Respondent has indicated it proposed the addition of paragraph (c) to Rule 33-5.006(8), Florida Administrative Code, because of security concerns. As explained by a representative of the Respondent the following are those security concerns:
One spouses (i.e., the wife) may be visiting an inmate without the knowledge of the other spouse (i.e., the husband). If the husband becomes aware of the fact that his wife is visiting an inmate the husband may become alarmed and complain to the Respondent and his wife about the visitation.
When the husband complains to his spouse or the Respondent and the inmate learns of the problem, the inmate may become upset. The Respondent indicated that there have been a few instances where inmates who, upon learning that husband of the inmate's visitor has been making it difficult for the visiting spouse to continue with visitation, have attempted to escape to get to the husband.
The evidence failed to prove that there is a significant security problem if inmates are allowed to have visitation from a married visitor without requiring that both spouses visit the inmate at the same time. The evidence concerning escape attempts (at best, 5 to 10 attempts during the past thirty years) was speculative. No specifics concerning such attempts were provided when the Petitioner asked for specifics. Nor did the evidence prove that the Respondent's security is inadequate to handle the relatively low number of such escape attempts or that any such escape attempt has been successful.
The Notice of Proposed Rulemaking for the Proposed Rule Amendment included a "Summary of the Estimate of Economic Impact of the Rule". Although the Petitioner challenged the adequacy of the Respondent's determination of the economic impact of the Proposed Rule Amendment, the evidence presented during the final hearing of this case failed to prove that the economic impact statement was inadequate.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54, Florida Statutes (1991).
Standing.
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 rule amendment at issue in this proceeding. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984).
The Petitioner has also attempted to institute the instant proceeding as a "representative of other substantially affected persons . . . ." See page
8 of the Petition and page 4 of the Petitioner's Proposed Final Order. There is no authority that would allow the Petitioner to institute this proceeding on anyone's behalf other than himself.
Nature of the Petitioner's Challenge.
The only appropriate challenge to a proposed amendment to a rule which may be brought before the Division of Administrative Hearings is a challenge pursuant to Section 120.54, Florida Statutes. The only relief which may be sought pursuant to Section 120.54, 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."
What constitutes an "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:
"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:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or
The rule is arbitrary or capricious.
In order to challenge a proposed amendment to an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule amendment violates and the specific facts supporting such an allegation.
In this case, the Petitioner has alleged that the proposed amendment to Rule 33-5.006(8), Florida Administrative Code, constitutes an "invalid exercise of delegated legislative authority" in violation of Section 120.52(8)(a) and (b), Florida Statutes.
In the Petition, the Petitioner has also alleged that the Proposed Rule is unconstitutional for the following reasons: (1) the Proposed Rule places restrictions on the First and Fourteenth Amendment rights "of those who are NOT prisoners"; (2) the Proposed Rule discriminates on the basis of marital status; and (3) the Proposed Rule restricts the right of privacy of married individuals. These issues all involve the alleged rights of persons other than the Petitioner. The Petitioner has no standing to challenge the Proposed Rule Amendment on behalf of other persons who are not parties to this proceeding.
The Petitioner has also alleged that the Proposed Rule Amendment is invalid because it is contrary to the "American Correctional Association Standards" for correctional institutions. The Petitioner failed to present evidence which would support any finding concerning this argument. The Petitioner did not prove what the American Correctional Association is or what the standards of the Association are. The Petitioner also failed to prove that the Respondent is required to comply with any such standards.
Finally, the Petitioner has alleged for the first time in his proposed final order issues concerning the adequacy of the written statement of facts and circumstances justifying the proposed amendment and whether the Proposed Rule Amendment is contrary to federal standards. These issues were not raised in the Petition initiating this case. Therefore, these issues are not before the undersigned for consideration. Nor was it proved by the Petitioner that the Proposed Rule Amendment is invalid because of the written statement of facts and circumstances justifying the proposed amendment or federal standards.
Burden of Proof.
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).
The Validity of the Proposed Amendment to Rule 33- 5.006(8), Florida Administrative Code.
The Petitioner has alleged that the proposed amendment to Rule 33- 5.006(8), Florida Administrative Code, is invalid pursuant to Sections 120.52(8)(a) and (b), Florida Statutes.
Section 120.52(8)(a), Florida Statutes: A proposed rule amendment is considered invalid if it "[t]he agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54." Among the required rulemaking procedures of Section 120.54, Florida Statutes, is the requirement that an agency prepare "a detailed economic impact statement." Section 120.54(2)(b), Florida Statutes. The Petitioner has alleged that the economic impact statement for the Proposed Rule Amendment is inadequate. See paragraphs
11 and 12 of the Petition. The Petitioner failed to present proof concerning the inadequacy of the economic impact statement in this case. The economic impact statement is not inadequate on its fact. Therefore, the Petitioner has
failed to prove that the Proposed Rule Amendment is an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(a), Florida Statutes.
Section 120.52(8)(b), Florida Statutes: A proposed amendment to a rule is invalid if the agency "has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7) . . . ." The specific authority for the Proposed Rule is Sections 20.315, 944.09 and 944.23, Florida Statutes.
Section 20.315, Florida Statutes, gives the Respondent broad responsibility for the correctional system in Florida. Section 944.09, Florida Statutes, provides, in pertinent part, the following:
The department shall adopt rules governing the administration of the correctional system and the operation of the department, which rules shall relate to:
. . . .
(n) Visiting hours and privileges.
. . . .
Section 944.23, Florida Statutes, provides the following:
The following persons shall be authorized to visit at their pleasure all state correctional institutions:
The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. Permission shall not be unreasonably withheld from those who give sufficient evidence to the department that they are bona fide reporters or writers.
The authority delegated to the Respondent in the foregoing statutory provisions is broad. As pointed out by the Respondent, Sections 944.09 and 944.23, Florida Statutes, delegate authority to the Respondent to promulgate rules regulating who may visit a state correctional institution and the conditions of such a visit. Section 944.23, expressly excludes most visitors to the state's correctional institutions unless the Respondent authorizes their visitation by rule.
The Respondent has argued that these conclusions should end the inquiry in this case because the Petitioner has not alleged that the Proposed Rule Amendment is arbitrary or capricious. This argument is rejected. Although it is true that the Petitioner has not alleged that the Propose Rule Amendment is arbitrary or capricious, the statutory authority of the Respondent should not be interpreted to allow an agency to adopt rules which are not appropriate to the ends specified in a legislative act, or to allow requirements which are unreasonable or arbitrary or capricious. The standard for review of an agency's rule was explained as follows:
We think that the proper standard of review concerning rules promulgated pursuant to these sections, such as the rules sub judice, is set forth in General Telephone
Co. of Florida v. Florida Public Service Commission,
446 So.2d 1063 (Fla. 1984). The rules should be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary and capricious. Id. The party challenging the validity of an agency rule must show that the agency adopting the rule has exceeded its authority, that the requirements of the rule are not appropriate to the ends specified in the legislative act, and that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious. . . .
Grove Isle, Ltd. v. Department of Environmental Regulation, 454 So.2d 571, 573 (Fla. 1st DCA 1984). See also General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984).
In reaching the foregoing conclusions, it has been recognized that the Respondent is to be afforded wide discretion in the interpretation of a statute which it administers and that the Respondent's interpretation should not be overturned unless it is clearly erroneous. Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985). It has also been recognized that the Respondent's interpretation should not be disturbed if it is within the range of possible interpretations of a statute. Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983). The Respondent's interpretation of the authorizing statutes in this case is clearly erroneous and its interpretation is not within the range of possible reasonable interpretations.
The Respondent has evidenced an intent to allow inmate visitation and has indicated that visitation should be encouraged. See Rule 33-5.006(1) and (7), Florida Administrative Code. Visitation is not required, however, to be unrestricted. The Respondent has also recognized that visitation may be allowed only if it is "safe and practicable". Rule 33-5.006(7), Florida Administrative Code. The Respondent has provided that no visitation should be denied "for any reason unrelated to the security, order or rehabilitative objectives of the institution." Id. It would be unreasonable and contrary to its own rules for the Respondent to adopt a rule which restricts inmate visitation where the evidence failed to prove that the security, order or rehabilitative objectives of the institution would be jeopardized. The evidence in this case failed to prove that the Proposed Rule Amendment is necessary to protect the security, order or rehabilitative objectives of any institution.
Conclusion: Based upon the foregoing, it is concluded that the Petitioner proved that Respondent, in adding paragraph (c) to Rule 33-5.006(8), Florida Administrative Code, "has exceeded its grant of rulemaking authority". Therefore, proposed paragraph (c) of Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(b), Florida Statutes, in violation of Section 120.54, Florida Statutes.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the proposed addition of paragraph (c) to Rule 33-5.006(8),
Florida Administrative Code, is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b), Florida Statutes, in violation of Section 120.54, Florida Statutes.
DONE and ENTERED this 10th 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 10th 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
See 13 and 14.
This issue was not raised in the Petition in this case. Therefore, this issue was not properly before the undersigned for consideration.
Not supported by the weight of the evidence and not relevant. But see 13 and 14.
Not relevant.
Not supported by the weight of the evidence and not relevant. This issue was also not raised in the Petition in this case.
6-7 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
1 1.
2 3.
3 11 and 12. The Petition did not allege that the Proposed Rule Amendment was invalid pursuant to Section 120.52(8)(c), Florida Statutes.
4 15.
5-6 Although correct, these proposed findings of fact are not necessary.
COPIES FURNISHED:
W. Gerry Hargrove, Jr. No. 110941, BB114
Tamoka Correctional Institution 3950 Tiger Bay Road
Daytona Beach, Florida 32214
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
Liz Cloud, Chief
Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250
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.
================================================================= 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. 92-725
DOAH CASE NO. 91-7847RP
W. GERRY HARGROVE, JR.,
Appellee.
/
Opinion filed March 2, 1993.
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.
Appellee, pro se.
WOLF, J.
The Department of Corrections (DOC) appeals from a determination by a hearing officer of the Division of Administrative Hearings that proposed rule 33-5.006(8)(c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. The hearing officer determined that the restrictions on prison visitation promulgated within the proposed rule were unnecessary to protect the security, order, or rehabilitative objectives of the prison system, and was thus arbitrary and capricious. The DOC raises three issues on appeal: (1) Whether the hearing officer erred by failing to dismiss
the administrative petition for lack of jurisdiction, (2) whether the hearing officer erred in finding the agency had exceeded its grant of rulemaking authority, and (3) whether the hearing officer erred in finding that the inmate had standing to bring the rule challenge. We determine that the hearing officer did not err in his determinations concerning jurisdiction or standing, and affirm as to those issues without further discussion. See Department of Corrections v. Sumner, 447 So.2d 1388 (Fla. 1st DCA 1984). We do find, however, that the proposed rule is within the broad grant of authority given to DOC to regulate relations between prisoners and the outside world, and therefore reverse as to issue II.
DOC proposed an amendment to rule 33.056(8) which provided in pertinent part as follows:
(c) Married or unmarried inmates may have non-immediate family member couples on the
visiting list after approval but the member of the couple who is the opposite sex of the inmate may not visit the inmate without the spouse.
Appellee, who had several married female visitors on his visitors' list, filed a challenge to the proposed rule, pursuant to section 120.54, Florida Statutes. Appellee alleged that the proposed rule violated section 120.52(8)(a) and (b), which states that a proposed rule constitutes an invalid exercise of delegated legislative authority where "(a) the agency has failed to follow the applicable rulemaking procedures set forth in s. 120.54, or (b) the agency has exceeded the grant of rulemaking authority, citation to which is required by s. 120.54(7). 1/ The pertinent statutory authority cited by DOC includes section 944.09, Florida Statutes, and section 944.23, Florida Statutes. Among other things, section 944.09, Florida Statutes, requires that rules be adopted by DOC, governing visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Section 944.23, Florida Statutes, provides in pertinent part as follows:
944.23 Persons authorized to visit state prisons.--The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. Permission shall not be unreasonably withheld from those who give sufficient evidence to the department that they are bona fide reporters or writers.
During the hearing on the rule challenge, DOC presented testimony concerning the security risk involved in allowing married visitors of the opposite sex to visit without their spouses. These security concerns included the following:
One spouses (i.e., the wife) may be visiting an inmate without the knowledge of the other spouse (i.e., the husband). If the husband becomes aware of the fact that his wife is visiting an inmate the husband may become alarmed and complain to the Respondent and his wife about the visitation.
When the husband complains to his spouse or the Respondent and the inmate learns of the problem, the inmate may become upset. DOC indicated that there have been a few instances where inmates who, upon learning that husband of the inmate's visitor has been making it difficult for the visiting spouse to continue with visitation, have attempted to escape to get to the husband.
The representative of DOC further testified that it was determined, based on questioning of recaptured inmates, that such reasons were the cause of at least five to ten escape attempts in the last 30 years. At the conclusion of the hearing, the hearing officer found that the rule was arbitrary and capricious as well as being beyond the scope of delegated legislative authority. 2/
A challenge to agency rules based on the fact that an agency has exceeded the grant of rulemaking authority from the Legislature will not be sustained as long as the rules are reasonably related to the purpose of the enabling legislation. General Tel. Co. of Florida v. Florida Public Serv. Comm'n, 446 So.2d 1063 (Fla. 1984); Florida League of Cities v. Department of Environmental Regulation, 603 So.2d 1363 (Fla. 1st DCA 1992). In addition, an agency is given broad discretion in the exercise of its lawful authority, and the burden is on the petitioner to demonstrate that a rule is arbitrary and capricious. Cataract Surgery Center v. Health Care Cost Containment Bd., 581 So.2d 1359 (Fla. 1st DCA 1991); Department of Professional Regulation, Bd. of Medical Examiners v.
Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).
The Legislature by statute has granted broad discretion to DOC to regulate the activities of prisoners. In section 944.23, this broad power was specifically extended over the visitation rights of prisoners. This court has on several occasions recognized the great deference to be given to prison officials to regulate the relations between prisoners and the outside world.
Lambrix v. Dugger, 18 Fla. L. Weekly D188 (Fla. 1st DCA Dec. 30, 1992); State v. Olson, 586 So.2d 1239 (Fla. 1st DCA 1991). This deference is at least in part based upon the significant security concerns facing prison officials. Clearly, the proposed rule is within the grant of legislative authority and is reasonably related to the purpose of the enabling legislation. It is also inappropriate for this court or the hearing officer to second-guess DOC on the extent of the security risk involved. We, therefore, find that the rule proposed by DOC is legislatively authorized, and is not arbitrary or capricious. The decision of the hearing officer is reversed.
WIGGINTON and MINER, JJ., concur.
ENDNOTES
1/ The hearing officer found no violation of the rulemaking procedures. It is unnecessary for us to discuss this issue any further.
2/ DOC contends that the issue of arbitrariness was not properly presented to the hearing officer. We need not reach this issue as we find the rule to be neither beyond the scope of delegated legislative authority nor arbitrary or capricious.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable Larry J. Sartin, Hearing Officer
WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings
W. GERRY HARGROVE, JR.
vs. Case No. 92-725
Your Case No. 91-7847RP
DEPARTMENT OF CORRECTIONS
The attached opinion was rendered on March 2, 1993.
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. Joanos
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 19th day of April, 1993.
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Apr. 23, 1993 | Mandate & Opinion filed. |
| Mar. 04, 1993 | First DCA Opinion filed. |
| Jun. 24, 1992 | Index, Record, Certificate of Record sent out. |
| May 18, 1992 | ORDER(First DCA- Motion for extension of time to serve initial brief is GRANTED) filed. |
| May 04, 1992 | Final Hearing Transcript filed. |
| Apr. 24, 1992 | Index & Statement of Service sent out. |
| Apr. 07, 1992 | (Respondent) Designation filed. |
| Mar. 11, 1992 | Letter to DOAH from DCA filed. DCA Case No. 1-92-725. |
| Mar. 09, 1992 | Certificate of Notice of Appeal sent out. |
| Mar. 06, 1992 | Designation & Letter to First DCA from Claire D. Dryfuss filed. |
| Mar. 06, 1992 | Notice of Administrative Appeal filed. |
| Feb. 10, 1992 | CASE CLOSED. Final Order sent out. Hearing held 1/3/92. |
| Jan. 29, 1992 | Order Granting Motion to Strike sent out. |
| Jan. 29, 1992 | Order Certifying Indigency sent out. |
| Jan. 21, 1992 | Affidavit of Insolvency; Petition Requesting Order Certifying Indigency filed. |
| Jan. 17, 1992 | (Respondent) Motion to Strike filed. |
| Jan. 16, 1992 | (Petitioner) Proposed Final Order w/Exhibits A-C filed. |
| Jan. 09, 1992 | Respondent's Proposed Final Order filed. |
| Jan. 06, 1992 | Order Denying Petition Requesting Order Certifying Indigency sent out. |
| Jan. 06, 1992 | Order Denying Motion to Dismiss for Lack of Jurisdiction and Granting Motion to Dismiss Petition Requesting Repeal of Proposed Rule Amending Section 33-5.006 sent out. |
| Jan. 06, 1992 | Order Concerning Witnesses sent out. |
| Dec. 26, 1991 | (Respondent) Notice of Exchange of Exhibits filed. |
| Dec. 19, 1991 | (Respondent) Motion to Dismiss Petition Requesting Repeal of Proposed Rule Amending Section 33-5.006 filed. |
| Dec. 19, 1991 | Petitioner`s Rebuttal In Opposition to Respondents` Motion to Dismiss For Lack of Jurisdiction filed. |
| Dec. 18, 1991 | Petition Requesting Repeal of Proposed Rule Amending Section 33-5.006; Petition Requesting Order Certifying; Partial Witness List With Request to List Additional Witnesses filed. |
| Dec. 11, 1991 | (Respondent) Motion to Dismiss For Lack of Jurisdiction filed. |
| Dec. 09, 1991 | Notice of Hearing sent out. (hearing set for Jan. 3, 1992; 9:00am; via telephone). |
| Dec. 09, 1991 | Pre-hearing Order sent out. |
| Dec. 06, 1991 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| Dec. 06, 1991 | Order of Assignment sent out. |
| Dec. 04, 1991 | Petition Requesting Administrative Determination of the Invalidity of Proposed Rule Amending Section 33-5.006; Addendum to Petition Requesting Administrative Determination of the Invalidity of Proposed Rule Amending Section 33-5.00 6 filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 02, 1993 | Opinion | |
| Feb. 10, 1992 | DOAH Final Order | Proposed rule allowing visitation by inmate with married visitor of opposite sex unless spouse also visits is invalid. |
