STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY LEE DIXON and )

RICKY C. NOBLES, )

)

Petitioners, )

)

vs. ) CASE NO. 92-2980RXP

)

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

SUMMARY FINAL ORDER

By Petitioner for Administrative hearing Henry Lee Dixon and Ricky C. Nobles, Petitioners, seek a determination that Rule 33-3.0045, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority as the rule is broad and vague and vests unbridled authority in the Department. Specifically, Petitioners allege that they ordered tennis shoes from outside the prison and submitted a package permit for the shoes, which permit was denied because tennis shoes are sold in the inmates' canteen. They filed grievances to correct this situation but were unsuccessful.

Respondent filed a Motion to Dismiss or Alternatively, for Final Summary Order. In this pleading it is pointed out that Petitioners fully understand the rule and their complaint is that they do not like the rule.

The challenged rule provides procedures for inmates to obtain package permits and rules regulating the use of package permits. Subsection (2)(g) provides:

Items sold in the institution's canteen will not be approved.

Petitioners' contention that the word "item" is vague and unduly broad is totally without merit.

Section 944.09, Florida Statutes, delegates to the Department of Corrections authority to adopt rules governing the administration of the correctional system and the operation of the Department related to, inter alia;

(a) the rights of inmates

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

(g) mail to and from the state correctional system.

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

Section 944.47, Florida Statutes, provides that it is unlawful for inmates to introduce into the facility, except through regular channels as authorized by the officer in charge of the correctional institution, any of the following articles (among others):

2. Any article of food or clothing given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

The statute above cited clearly provide authorization for the Department to promulgate the protested rule. The rule is neither vague, arbitrary, capricious, nor does it exceed the authority to enact rules delegated by the Legislature to the Department. Petitioners' primary complaint is that they do not like the rule. This is not a valid basis for a rule challenge.

From the foregoing, it is concluded that Rule 33-3.0045, Florida Administrative Code, is neither arbitrary, capricious, vague, nor beyond the authorization given by the Legislature to the Department of Corrections to promulgate rules regulating the conduct of inmates of state correctional institutes. It is, therefore

ORDERED that the Petition for Administrative Hearing filed by Henry Lee Dixon and Ricky C. Nobles challenging the validity of Rule 33-3.0045, Florida Administrative Code, be dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of June 1992.

K.N. AYERS 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

18th day of June 1992.

COPIES FURNISHED:

Henry Lee Dixon #054602

Florida State Prison Post Office Box 747 Starke, Florida 32091

Ricky C. Nobles #545389

Florida State Prison Post Office Box 747 Starke, Florida 32091

Claire D. Dryfuss Assistant Attorney General

Department of Legal Affairs Suite 1603 The Capitol Tallahassee, Florida 32399-1050

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

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

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: 92-002980RX

Orders for Case No: 92-002980RX