STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY SCOTT GAMBLE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0003RXP

)

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 February 5, 1992.

APPEARANCES

For Petitioner: David Ansgar Nyberg

Non-attorney Representative #049898

Marion Correctional Institution Post Office Box 158

Lowell, Florida 32663

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 33-3.006(1)(c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority?

PRELIMINARY STATEMENT

On January 3, 1992, the Petitioner, Jeffrey Scott Gamble, filed a pleading titled "Initial Complaint" challenging Rule 33-3.006(1)(c), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. By Notice of Assignment entered January 7, 1992, this case was assigned to the undersigned.

On January 7, 1992, a Notice of Hearing was entered setting the final hearing of this case for February 5, 1992.

On January 10, 1992, the Respondent, the Department of Corrections, filed a Motion to Dismiss or, Alternatively, for Summary Final Order. These motions were denied by Order entered January 22, 1992.

The formal hearing of this case was conducted by telephone. The undersigned, the court reporter, counsel for the Respondent and one witness were located in a hearing room of the Division of Administrative Hearings in Tallahassee, Florida. The Petitioner, his representative and the other witness who testified during the hearing were located at Marion Correctional Institution in Lowell, 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 in his own behalf and presented the testimony of Nathanial Snodgrass and Jerry L. Vaughan. Petitioner offered three exhibits which were accepted in part. The Respondent presented its case through testimony of Mr. Snodgrass and Mr. Vaughan on cross examination. 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, Jeffrey Scott Gamble, is an inmate in the custody of the Respondent, the Department of Corrections, at Marion Correctional Institution.

      
      

   2. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner's AM/FM radio was confiscated by the Respondent as contraband because the radio had been altered by the addition of an AC cord and a switch.

      
      

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 the rights of inmates, the rules of inmate conduct, the operation and management of correctional institutions and all other aspects of the operation of the prison system in Florida.

      
      

3. Rule 33-3.0045, Florida Administrative Code.

   
   

   1. Rule 33-3.006, Florida Administrative Code, defines what constitutes "contraband" in a prison, prohibits the possession of contraband by inmates and provides the manner in which contraband will be disposed of.

      
      

   2. Rule 33-3.006(1)(c), Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), defines "contraband" to include, the following:

      
      

      (c) Any item or article which is altered from its original condition in such a way that it presents a threat to the security or order of the institution.

   3. The determination of whether an item constitutes "contraband" pursuant to the Challenged Rule is determined by correctional officers at each institution.

      
      

   4. The legislative authority cited for the Challenged Rule is Sections

      944.09 and 945.215, Florida Statutes.

      
      

   5. The legislative provisions implemented by the Challenged Rule are Sections 944.47 and 945.215, Florida Statutes.

      
      

4. The Petitioner's Challenge.

   
   

   1. The Petitioner has alleged that the Challenged Rule "is an invalid exercise of delegated legislative authority as it enlarges the specific provisions of law implemented [Section 120.52(8)(c), Florida Statutes], it contravenes the specific provisions of law implemented [Section 120.52(8)(c), Florida Statutes], and it fails to establish adequate standards for agency decision and/or vests unbridled discretion in the agency [Section 120.52(8)(d), Florida Statutes]."

      
      

   2. With regard to whether the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" found in Section 120.52(8)(c), Florida Statutes, the Petitioner has alleged that the Challenged Rule:

      
      

      . . . expands the definition of the word contraband and in so doing expands the items that are then subject to forfeiture beyond that authorized by the law implemented.

      10. In the sections of Florida Statutes cited as the law implemented there is a definition for the word contraband. This definition is contained in Chapter [sic] 944.47 (1)(a), Florida Statutes. This definition does not support the view that the alteration of an item causes it to be contraband.

      
      

      Petitioner's Initial Complaint.

      
      

   3. With regard to whether the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" found in Section 120.52(8)(d), Florida Statutes, the Petitioner has alleged that the Challenged Rule:

      
      

      . . . is invalid because it has inadequate standards and/or vest the Respondent with unbridled discretion in deciding when an alteration presents a threat to the security or order of the institution. . . .

      
      

5. The Respondent's Interpretation of the Challenged Rule.

1. It is the position of the Respondent that any item in an inmate's possession which has been altered must be confiscated under the Challenged Rule. An item is "altered" when it is not in its original condition.

   
   

2. It is the Respondent's position that any change in the original condition of an item or the item's use constitutes an alteration.

3. It is the Respondent's position that any alteration to an item in an inmate's possession constitutes a threat to the order or security of the institution.

   
   

4. It is the Respondent's position that the determination of whether an item that has been altered is a threat to the order or security of the institution is "only pertinent for the purpose of the disciplinary proceeding."

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

5. 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.

      
      

6. 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 at issue in this proceeding. See Department of Corrections

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

   
   

   1. Nature of the Petitioner's Challenge.

      
      

7. 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."

   
   

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

   
   

   (8) "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 rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

   2. The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency, or

   . . . .

9. In this case, the Petitioner has alleged that Rule 33-3.006(1)(c), Florida Administrative Code, constitutes an "invalid exercise of delegated legislative authority" in violation of Sections 120.52(8)(c) and (d), Florida Statutes.

   1. Burden of Proof.

      
      

10. 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 33-3.006(1)(c), Florida Administrative Code.

    
    

11. Section 120.52(8)(c), Florida Statutes: The Petitioner has alleged that the Challenged Rule constitutes an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(c), Florida Statutes, because the Challenged Rule establishes a definition of the term "contraband" inconsistent with the definition of "contraband" found in one of the statutory provisions the Challenged Rule implements, Section 944.47, Florida Statutes.

    
    

12. The Petitioner's argument is without merit and is rejected. The Petitioner's argument assumes that Section 944.47, Florida Statutes, is the exclusive pronouncement of the Legislature concerning what constitutes "contraband" in the State's prisons. It is not. Section 944.47, Florida Statutes, provides, in part, that ". . . it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, "

    Section 944.47, Florida Statutes, merely establishes criminal sanctions which may be imposed on persons who introduce or attempt to introduce specifically designated items into the prisons and indicates that those items are considered contraband for purposes of the criminal sanctions.

    
    

13. Section 944.47, Florida Statutes, does not eliminate the Respondent's authority to exclude a wide variety of items from the possession of inmates and to label those items generally as "contraband". Section 944.47, Florida Statutes, merely provides that any attempt to put certain prohibited items in the hands of inmates will constitute a crime. It creates the penalty for a subset of items which may be banned from institutions.

    
    

14. The foregoing conclusions are readily apparent when Section 944.47, Florida Statutes, is considered in pari materia with all of the provisions of Chapter 944, Florida Statutes, and, in particular, the provisions of Section 944.09, Florida Statutes. Section 944.09, Florida Statutes, grants authority to the Respondent to determine generally how prisons are run and, in particular, the general rules governing items of personal property inmates are allowed to receive or have in their possession. Pursuant to the broad grant of authority to the Respondent, the Respondent may exclude possession by inmates of a range of items which it can characterize as "contraband" or any other term which the Respondent decides to use to describe the banned items.

    
    

15. Section 945.215, Florida Statutes, also supports the foregoing conclusions. Section 945.215, Florida Statutes, provides that "[a]ny contraband found upon, or in the possession of, any inmate in any institution under the jurisdiction of the department shall be confiscated and liquidated, and the proceeds thereof shall be deposited in the Inmate Welfare Trust Fund of the department." The use of the term "contraband" in this section is broader than the use of the term in Section 944.47, Florida Statutes. No definition of the term as used in Section 945.215, Florida Statutes, is provided and the

    designation of the items specified in Section 944.47, Florida Statutes, as "contraband" does apply to Section 945.215, Florida Statutes, because Section 944.47, Florida Statutes, specifically provides that it is "for the purposes of this section "

    
    

16. Pursuant to the Respondent's broad rule-making authority, the Respondent is authorized to prohibit inmates from possessing items which have been altered in such a way that they constitute a threat to the security or order of the institution. Therefore, the Challenged Rule is not contrary to the provisions of Section 944.47, Florida Statutes, as alleged by the Petitioner.

    
    

17. Section 120.52(8)(d), Florida Statutes: The Petitioner has alleged that the Challenged Rule constitutes an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(d), Florida Statutes, because the Challenged Rule " . . . fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency "

    
    

18. 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 differ as to the rule's application. State v. Cumming, 365 So.2d 153 (Fla. 1978). In St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982), the following test was applied to determine whether a rule was vague: (1) whether persons of common intelligence are required to guess at the rule's meaning; and (2) whether persons affected by the rule were properly apprised of the rule's effect on them.

    
    

19. 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).

    
    

20. In determining whether a rule is vague, fails to establish adequate standards for agency decisions or vests unbridled discretion in an 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).

    
    

21. Giving the language of the Challenged Rule its plain meaning, it is concluded that the Challenged Rule is not vague. Nor does the Challenged Rule fail to establish adequate standards for the Respondent's decisions or vest unbridled discretion in the Respondent. Pursuant to the Challenged Rule, any property which is altered from its original state in such a manner that it may pose a threat to the security or order of the institution will be considered contraband for purposes of Rule 33-3.006, Florida Administrative Code.

    
    

22. Although the Respondent has expressed an apparently different interpretation of the Challenged Rule, the conclusions reached in this Final Order are based upon the plain language of the Challenged Rule and not the Respondent's interpretation or application of the Challenged Rule. Whether the Respondent properly interprets or applies its rules is not within the undersigned's jurisdiction in this case.

    
    

23. Conclusion: Based upon the foregoing, it is concluded that the Petitioner failed to prove that Rule 33-3.006(1)(c), Florida Administrative Code, "enlarges, modifies, or contravenes the specific provisions of law implemented . . ." or "is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency "

Therefore, Rule 33-3.006(1)(c), Florida Administrative Code, does not constitute an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(c) or (d), 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 has failed to prove that Rule 33-3.006(1)(c),

Florida Administrative Code, is an invalid exercise of delegated legislative authority in violation of Section 120.56, Florida Statutes, and the Petitioner's Initial Complaint is DISMISSED.

DONE and ENTERED this 27th 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 27th day of March, 1992.

APPENDIX TO FINAL ORDER, CASE NO. 92-0003RXP

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 2.

2-3 Not relevant.

4 Hereby accepted.

5-6 13.

7 Hereby accepted.

8 7.

9 15.

10 13-14.

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 2.

3 3.

4 10-12.

5 13-14.

6 15.

7 Hereby accepted.

8 13-15.

9 15.

10 13-15.

11-12 16. The last sentence is not supported by the weight of the evidence.

13 Hereby accepted.

COPIES FURNISHED:

David Ansgar Nyberg #049898

Marion Correctional Institution Post Office Box 158

Lowell, Florida 32663

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 General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

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: 92-000003RX

Orders for Case No: 92-000003RX