The Issue This case arises out of a challenge by the Petitioners to the validity of Rule 33-3.02(6), Florida Administrative Code; Policy and Procedure Directive 2.02.13, and Union Correctional Institution Operating Procedure No. 81-82. The Petitioners specifically challenge the validity of those portions of the above- provisions relating to the issue of clothing to the inmates. At the final hearing, Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers, testified on their own behalf and also called as witnesses Charles Connors and Paul Gunning. Petitioners offered and had admitted into evidence five exhibits. Respondents called no witnesses and offered no exhibits into evidence. The Petitioner S. B. Ridley, did not appear at the formal hearing. The Hearing Officer was informed by one of the other Petitioners at the formal hearing that Mr. Ridley had been transferred to Polk Correctional Institution. Mr. Ridley was given due notice of the hearing held on February 17, 1984, and has filed no pleading or motion with the undersigned Hearing Officer seeking either a continuance or other relief. The Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact The Petitioners, Joseph Redman, Nyadzi D. Rufu and Jimmy L. Rogers are inmates incarcerated at Union Correctional Institution, Raiford, Florida. On November 5, 1982, as Petitioner Rogers was being released from disciplinary confinement, he entered the laundry to obtain another pair of state issued pants, socks and underwear. The name tag was coming off of his jacket and because of this it was confiscated. He asked for another jacket and was told he could not be issued one. He was eventually issued another jacket which was also confiscated. For a period of time, Petitioner Rogers had no jacket for those times when he was required to walk and be outside in the cold. The laundry manager at Union Correctional Institution is responsible for the issue of all clothing to the prisoners. The manager follows Union Correctional Institution Operating Procedure 81-82 in issuing clothing an Union Correctional Institution. That operating procedure provides in relevant part: 81-82.1 Purpose This memorandum is published as a guide in the issuance of inmate clothing, and the providing of laundry facilities for the inmate population. 81-82.2 Authority Florida Statutes 945.21, 944.09 section 20.315 Department of Corrections Administrative Rules, Chapter 33-3.02(6). 81-82.3 Clothing Issue Each inmate shall be issued the following clothing items: 3 each Blue Shirts 3 pairs Blue Trousers 1 each Web Belt 1 pair Boxer Shorts 1 pair Socks 1 pair Shoes, High Top. Inmates assigned to the Food Service Departments and Canteens shall be issued one additional suit of clothing because of their having to work on Sundays, enabling them to change clothing daily. 81-82.6 Special Issue Inmate Jackets are issued in October of each year and picked up for storage in April. An inmate may have his jacket laundered on any Friday. Hats, caps, and other special clothing items are issued to the Department Supervisor for distribution to the work squad. The Supervisor is responsible for those items of issue. 81-82.7 Miscellaneous Information The Laundry Manager/Clothing Officer shall maintain a record of the various clothing items issued to each inmate. If clothing issue is abused, either through neglect or by intent, the officer will initiate appropriate action. The official inmate uniform throughout the institution is issue blue shirt and trousers. Inmates assigned to the following areas are issued white shirts and trousers in lieu of the regular blue uniform: Food Service Administration Building Workers Main Gate Workers Utility Man on each Close Supervision Squad (For Identification) Canteen Workers. Each inmate who turns in a jacket (at the end of winter) shall be issued a pair of hemmed walking shorts for wearing on the athletic field or after hours in the housing area. The manager was not aware of and has not utilized Policy and Procedure Directive 2.02.13, in issuing clothing at Union Correctional Institution. That policy and procedure directive provides in relevant part: AUTHORITY: Section 20.315, 944.09 and 945.21, Florida Statutes Department of Corrections, Administrative Rules, Chapter 33-3.02(6) PURPOSE: The purpose of this Directive is to establish a uniform procedure for issuing inmate clothing and linens. This will enable the Department to control the costs of clothing and linens in a more economical manner. GENERAL: Appropriate internal measures will be taken by each operating location to implement the provisions of this Directive. It is the Department's expressed intent that all inmate clothing be appropriately fitted and suited for the environment and that Departmental facilities provide sufficient laundering facilities to ensure that appropriate health standards are maintained. The clothing and linen will be exchanged on a one for one basis after the initial issue. Should an inmate intentionally damage or destroy his/her uniforms, appropriate action should be taken by the Superintendent to reimburse the State, if possible. It is imperative that the custodial staff be well informed of the provisions of this Directive and any exceptions or deviations from this Policy set forth will have to be approved by the Regional Director. STANDARD CLOTHING ISSUE (MALE): Each male inmate may be issued the items of clothing and linen specified below. The phrase "Maximum Clothing Issue" is used in this Directive to permit the substitution of personal clothing or to permit the issuance of less than maximum quantities where appropriate. Unless otherwise designated, the inmate will not have excess clothing and linens in his possession. Each inmate will be responsible for the clothing and linen issued to him. Maximum Clothing Issue - Blues and Whites Items Quantity Shirts 3 for 5 day post 5 for 7 day post 3 for 5 day post 5 for 7 day post Maximum Clothing Issue - Other Items Items Quantity Undershorts 3 pairs Undershirts/T shirts 3 Socks 2 pairs (changed daily) Belt with Buckle 1 Shoes 1 pair Jacket (winter only) 1 Long underwear (winter only for outside detail) 2 Regions III, IV and V may substitute two sweatshirts for two pairs of long underwear for winter use. E. Clothing - Special Items such as food service linens, coverall's aprons, cooks' caps, gloves, rubber boots, raincoats, athletic uniforms, barber and butcher jackets, straw hats and safety helmets shall be considered tools of the trade and will be issued directly to the department requiring them. The superintendent will, on recommendation and justification by department head, determine what items are to be purchased and issued to inmate. All items issued on a departmental basis that can be appropriately marked shall have the standardized department initials stenciled on the item. It will be the responsibility of the superintendent to establish a laundry schedule for these items. Only those inmates who work outside for eight hours each day are issued long underwear during the winter months. The inmates do not go outside when the temperature is below 40 degrees. The laundry does not issue raincoats to the inmates. The raincoats are under industry inventory and each department can draw raincoats out of that inventory. The raincoats are paid for by the department drawing them out and the work supervisor from that department issues them to the inmates. Raincoats are sold in the canteen at Union Correctional Institution. The laundry stocks long underwear but no longer stocks T-shirts. The laundry does not stock sweatshirts. There are two types of blue uniforms. The laundry issues coveralls to special jobs but no coveralls are issued to inmates personally. It is within the laundry manager's discretion as to when he issues new clothing as opposed to used clothing. It is the laundry manager's responsibility to remain within his budget for the year. T-shirts are not included in the list of clothing issue items in Union Correctional Institution Operating Procedure 81-82. This may be due in part to budget restrictions. T-shirts are included in the "maximum clothing issue" list in Policy and Procedure Directive 2.02.13. Practically every inmate in Union Correctional Institution is required to go outside in order to go to work or to school. The inmates must also go outside in order to go to the chow hall or the clinic. The west unit is approximately a 4 or 5 minute walk from the chow hall. Union Correctional Institution Operating Procedure No. 81-82 is signed and issued by the Superintendent of UCI and cites as its authority Florida Statutes 945.21, 944.09, Section 20.315, and Rule 3303.02(6), Florida Administrative Code. The Respondent has not contested the fact that the operating procedure was not promulgated in accordance with the requirements of Section 120.54, Florida Statutes. There was no evidence presented as to the procedures followed in adopting the Policy and Procedure Directive 2.02.13.
The Issue The issues to be determined are whether Respondent failed to maintain good moral character as required by Section 943.1395(7), Florida Statutes, and if so, what penalty should be used?
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was certified as a correctional officer by the Commission, having been issued Correctional Officer Certificate number 144670. On or about January 14, 2009, Respondent was employed by Tomoka Correctional Facility (Tomoka). He had been employed by the Department of Corrections (DOC) for approximately 15 years. At some point during the day, Inmate William Cash became disorderly and disruptive in his cell, and a psychological emergency was called. Officer James Hinds and Respondent came to Cash's cell to transport him to a holding cell where he could be seen by a psychologist. In preparing for the transfer, Respondent and Officer Hinds restrained Inmate Cash using handcuffs, leg irons, a waist chain, and a black box which secured Cash's handcuffs. After restraints were applied, Inmate Cash was transported to a holding cell, with Captain Darlene Taman observing the transfer. Consistent with DOC protocols, the transfer of Inmate Cash from his cell to a holding cell was videotaped. Once they arrived at the holding cell, Respondent had Inmate Cash sit down on a bench in the cell. Inmate Cash attempted to twist and pull away from Respondent's grasp. In response, Respondent reasserted his grip and raised one arm, placing his hand against Inmate Cash's neck. The inmate continued pulling away from Respondent until he was lying down on his side. Respondent did not report the incident to his Captain or complete any type of incident report regarding the events occurring in connection with the transport. Captain Taman did not actually see the interaction between Respondent and Inmate Cash, because she was attempting to monitor several situations simultaneously. Consistent with DOC procedure, the warden at Tomoka reviewed the videotape of the transfer. After reviewing the videotape, the warden filed a complaint with John Joiner, Senior Prison Inspector with the DOC Office of Inspector General to investigate whether there was excessive use of force with respect to the interaction between Respondent and Inmate Cash. A use of force occurs when a correctional officer touches an inmate who is offering resistance, applying force to overcome the inmate's resistance. Touching alone does not constitute use of force. It is the application of force to overcome resistance that is key to determining whether a use of force has occurred. When a use of force occurs, a correctional officer is required to report the use of force to his or her commanding officer; to complete a Use of Force report; and to complete an incident report on the use of force. Use of Force reports are to completed within 24 hours. Correctional officers are trained regarding use of force and the required reporting of use of force on an annual basis. Respondent did not report the incident to his supervisor and did not complete a use of force report. In his view, no use of force occurred because Inmate Cash was pulling away from him and he was not applying force to overcome Inmate Cash's resistance. According to Respondent, he attempted to get a better grip on Inmate Cash and then allowed him to lie down on his side on the bench where he was sitting. He described the event as follows: MR. DONOVAN: . . . Use of force, because you place your hands on an inmate, it does not necessarily incur a use of force. It is the resistance to that, me overcoming his resistance is what determines if there is or is not a use of force. The inmate initially pulled away from me. I reasserted my grasp and put my arm up to defend myself. Like I indicated in my interview, that is why my arm went up. He sat back down on his own and he pulled away and started leaning down on the bench to lay down. And after he got down on the bench, after the whole thing was over is when I gave him more orders to stop pulling away, because he continued to pull away from me. I knew he was restrained -- completely restrained, i.e., leg irons, black box, the waist chain and the -- the handcuffs, which is why I didn't use the force. I just wanted to be sure that I had control of the situation, that I had control of him, so that I didn't get hurt or he didn't get hurt. I have been kicked by inmates. I have been spit on and head-butted by inmates, who were completely restrained, such as Mr. Cash was restrained that day. And I know through my training, that just because you touch an inmate, it's not use of force; that you have to -- you have to overcome the resistance that he's presenting to you in order for it to be a use of force. I did not do that. I did not force him to sit down. As he tugged away, he sat down on his own. And then after I reasserted my grasp to make sure that I had ahold of him and was in control of the situation, he laid down on his own. I do not know why; if it was just an attempt to continue to try to get away from me. However, he did all of that on his own. I did not push him down. The video of the incident was observed by both Captain Taman, Respondent's supervisor, and by Inspector Joiner. Both believed, as did Officer Hinds, that the exchange between Respondent and Inmate Cash involved a use of force. It is found that there was a use of force, but that the force used was not excessive. Inspector Joiner interviewed Respondent as a part of the investigation of the incident on January 19, 2010. His response during the interview was consistent with his testimony at hearing: that he did not file a report on use of force because he did not believe a use of force occurred and that, in his view, there was nothing to report. Respondent's testimony was candid, credible and sincere. He believed what he said in the interview and at hearing. However, his ultimate conclusion regarding the use of force was in error.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010. COPIES FURNISHED: Daniel W. Donovan Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether prison inmates' television viewing privileges are a legal interest of which the Administrative Procedure Act takes cognizance?
Findings Of Fact Until the memorandum and institutional operating pro- cedure here challenged were implemented, petitioners and other inmates at Union Correctional Institution were permitted (when not required to be doing something else) to watch television in common areas between three o'clock and eleven o'clock weekday evenings, and on holidays, between eight o'clock in the morning and two or three o'clock the following morning. After somebody donated equipment for cable television at Union Correctional Institution, and after inmates, including Lionel E. Chase, had installed the cable, James D. Stephens, recreation director at Union Correctional Institution, met with six other members of a committee which included Colonel D. E. Jackson, Jim Reddish, Assistant Superintendent for Prisoners, Lieutenant Rothman (phonetic) and an inmate representative who had no say in developing policy. As a result of the meeting, a memorandum dated January 23, 1984, was addressed to the inmate population, stating: T.V. programs including sporting events beginning at 10:00 p.m. or before, shall be viewed to completion. Any program starting after 10:00 p.m. shall be terminated at 11:30 p.m., unless authorized in advance by the T.V. Policy Committee. Petitioners' Exhibit No. 3. Earlier, on January 3, 1984, Superintendent Massey signed Union Correctional Institution Operating Procedure No. 83-30, "Institutional T.V. Policy" (IOP 83- 30) Petitioners' Exhibit No. 2. This document specified "selection and viewing procedures....[for] each respective housing area." With respect to every housing area in Union Correctional Institution, IOP 83-30 provides: On Monday through Friday, sets will be turned on at 3:00 P.M.; on weekends and holidays, sets will be turned on at 8:00 A.M. All t.v.'s shall be turned off exactly at 11:30 P.M. Sports programming and special events that air past the time limit shall be viewed to completion. IOP 83-30.5(D)(4). Although signed by Superintendent Massey on January 3, 1984, IOP 83-30 is dated December 30, 1983. The memorandum and IOP 83-30.5(D)(4) have been enforced against petitioners. In enforcing the new policy, correctional staff have not only turned the television sets off earlier on weekends, they have also closed the dayrooms earlier. The guards now padlock the dayroom doors when they turn off the television sets. In the past, the dayrooms remained open even after television viewing stopped, and inmates were allowed to read, paint, write letters and so forth. The inmates filed a grievance petition protesting this change in practice. Petitioners' Exhibit No. 1. Rule Rationale Before installation of the cable, inmates had a choice of two or three programs, but they now have a much wider choice, at least when the cable is in good repair. A person or persons unknown have slashed the cable some half dozen times. There are inmates who believe the guards, some of whom reportedly do not feel inmates should watch television at all, have sabotaged the cable. According to some prison officials, it is the inmates who have slashed the cables, which, they say, is an indication of how high feeling runs between the inmate faction that prefers sports programs and the faction that does not. In any event, according to respondent's witnesses, it was for fear of inmates' quarrelling in choosing among the larger number of options cable television has brought that viewing hours on weekends and holidays were shortened. This does not, of course, explain why they were lengthened on weekdays. Nor was there any evidence that the greater range of television programs has caused any dissension among the inmates. The hearing officer has had the benefit of the parties' posthearing submissions, including petitioners' proposed findings of facts, conclusions of law and final order. To the extent proposed findings of fact have not been adopted they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.
The Issue The issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Scott R. Blair (Respondent Blair) was certified by the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner) as a correctional officer, having been issued correctional certificate number 30982 on December 22, 1989. At all times material hereto, Charles A. Piazza (Respondent Piazza) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 25166 on August 11, 1988. At all times material hereto, Robert C. Singleton, Sr. (Respondent Singleton), was certified by Petitioner as a correctional officer, having been issued correctional certificate number 71355 on August 24, 1988. At all times material hereto, Thomas A. Sayed (Respondent Sayed) was certified by Petitioner as a correctional officer, having been issued correctional certificate number 98281 on March 27, 1987. At all times material hereto, all of the Respondents were employed as correctional officers with the Martin County Sheriff's Department in the Martin County Detention Center. In or around December 1989, a new Detention Center was constructed and opened. Prior to that time, the old Detention Center, called the "stockade," was located in Indiantown approximately 19 miles from the site of the new facility. The stockade contained a commissary which was used by both inmates and correctional officers. The commissary was a separate area of the stockade, which contained a variety of snack foods, cigarettes, and sodas for the benefit of the inmates of the facility, who could purchase the items with monies maintained in their individual accounts controlled by the Detention Center. 3/ None of the inmates had unsupervised and continuous access to the commissary. Even though the commissary was for the benefit of the inmates, correctional officers from time to time would remove items from it. There existed an unwritten honor policy that any item removed by a correctional officer would have to be paid for by that officer. A container was placed in the commissary and a correctional officer would place money in the container for the item removed. If an officer was unable to pay for the item at the time of its removal, a supervising officer could approve payment at a later time. An inventory was performed on a weekly and monthly basis, with no shortage of money being reported. This honor policy was well known to and acquiesced in by the commanding officer of the stockage, Major Murphy. Respondent Singleton, who was employed at the stockade, frequently used this honor policy. He would remove items from the commissary and put money in the container for the items. At times, he would not be able to pay for an item until payday, and he was allowed to pay for the item at that time by his superior officer on duty at the time. Respondent Blair was also employed at the stockade and used this honor system. When the new facility opened in or around December 1989, the commissary structure and procedure pertaining to inmate use remained the same, but the procedure pertaining to correctional officer use was changed by Major Murphy. Although the commissary continued to be for the benefit of the inmates, no longer were the correctional officers suppose to utilize it. The container for payment by the correctional officers for items removed no longer existed. Now, the correctional officers were suppose to obtain their items from an area within the new Detention Center specifically set-aside for them, which was separate and some distance away from the commissary. This area contained coin-operated machines which contained a variety of snack foods, cigarettes and sodas. However, although there was suppose to be this new policy, no one, other than administrative personnel and high ranking correctional officers, were aware of the change. No written policy was issued for the new facility to countermand the unwritten policy used at the stockade. This nonaction resulted in no notification to the correctional officers of the new policy. Without the written policy, some correctional officers who worked at the stockade continued their practice in the new facility of removing items from the commissary even though no container existed in which the officers could pay for the items removed. In particular, at the new facility one correctional officer on the night shift had removed some items from the commissary. Being unsure as to how to pay or who to pay for the items, he waited the next morning, before going home, for the person who purchased items for the commissary, so that he could pay for the items. The commissary purchasing person worked only on the day shift. At that time, he was notified by the commissary purchasing person that he no longer could obtain items from the commissary, but she did accept his money for the items and informed the officer's superior of the incident. Then and only then did he become aware of the policy change. Major Murphy continued as the commanding officer at the new Detention Center. He too used the commissary and the honor policy. At the stockade he would order boxes of cigars through the commissary, either prepaying for them or paying for them when they came in. He continued this practice at the new facility, which was at odds with his new unwritten policy of prohibiting correctional officers from using the commissary. Everyone was aware of Major Murphy's practice. Approximately a year and a half after the new facility opened, on June 13, 1991, through an inmate informant, Major Murphy became aware of possible inmate theft of cigarettes from the commissary. The alleged theft occurred the night before on June 12, 1991, which was the usual periodic time that inmates' requests for commissary items were filled by other inmates under the supervision of correctional officers. The inmates who were assigned to fill inmate requests from the commissary were questioned by an officer assigned to the investigation by Major Murphy. Implicated by the inmates interviewed in the June 12, 1991 theft of cigarettes were themselves, other inmates and several correctional officers, including Respondents. Besides officers actually removing cigarettes, one inmate was allegedly directed by one officer to deliver some cigarettes to another room and by another officer, Respondent Piazza, to deliver some cigarettes to her. Possible officer theft was a surprising development. On the basis of only the inmates' statements, on June 13, 1991, Respondents were notified to report to Major Murphy without notifying them about the nature of the meeting. The written procedure for investigating officers was not followed. Major Murphy dictated the procedure to be followed in the investigation. Respondents Blair, Piazza and Sayed met with Major Murphy and two of his ranking officers. Major Murphy did all the talking at the meeting. He cited the theft statute, notified them of the allegation against them and instructed them to tell what they had done. Major Murphy further told the Respondents that, if they did take the cigarettes, it would be the most expensive pack of cigarettes that they had ever had. At least one of Major Murphy's ranking officers perceived this statement by Major Murphy as a threat to the Respondents. Only Respondent Blair admitted to removing, but not stealing, two packs of cigarettes after changing his story several times as to how many packs he had removed. Respondent Sayed denied taking anything but at the conclusion of the meeting requested to meet with Major Murphy privately. In that private meeting, with one of Major Murphy's ranking officers also present, Respondent Sayed admitted to removing, but not stealing, two packs of cigarettes and attempted to give Major Murphy the money for the cigarettes. Major Murphy refused to take the money. Respondent Piazza denied taking any cigarettes from the commissary. Respondent Singleton was late for the meeting because he had not received notification of it. Again, Major Murphy did all the talking. He gave Respondent Singleton the same introductory comments regarding the theft statute, what was alleged, and requested his story of what happened. When Major Murphy completed his comments, Respondent Singleton admitted that, during his night shift, he had taken, but not stolen, a pie to eat because he lacked change for the machines and had intended to pay for the pie later. Respondent Singleton also admitted that in the past he had removed snack items from the commissary but had paid the commissary purchasing person for them later. 4/ His statement pertaining to paying for the items later is found not to be credible. If he had engaged in this type of conduct, it is reasonable to assume that the commissary purchasing person would have informed him that he could no longer engage in such conduct, as she had done with the correctional officer discussed in Finding of Fact 15. Respondents were suspended from their positions that same day and subsequently terminated. Prior to the meeting with Major Murphy, there was nothing other than the statements by inmates to connect the Respondents to the theft of cigarettes from the commissary. Moreover, no inventory was performed on the commissary items. No evidence existed to show that any unauthorized items had been taken from the commissary or that Respondents had taken any items from the commissary. Even though Major Murphy found the inmates' statements, standing alone, credible to initiate an investigation against the Respondents and personally question them, he failed to find these same statements from these same inmates credible to investigate any of the other correctional officers named in the statements and question them. Furthermore, no other correctional officer named on that evening shift was disciplined by Major Murphy. One of the inmates from whom the so-called credible statements were taken testified at the hearing that, when he assisted in the new commissary, it was not uncommon for correctional officers to remove items from the commissary. 5/ At the hearing, the inmate refused to name correctional officers other than those named in his investigative statement, which included Respondents Blair, Piazza and Sayed, because he was fearful of what might happen to him at the new Detention Center at which he was now again incarcerated. Importantly, before he agreed to give a statement during the investigation in which he named officers, he was told by the investigating officer that other inmates had already given statements and named officers. The inmate's testimony at hearing is found to be credible. Regarding Respondent Piazza, this inmate was directed by Respondent Piazza to take some cigarettes to another room within the facility where other officers were located, but none of whom personally accepted or received the cigarettes. Approximately four days after the Respondents' meeting with Major Murphy, on June 17, 1991, he issued a written memo regarding correctional officers removing items from the commissary. Major Murphy indicated in the memo that through an investigation, without revealing the nature of the investigation, "apparently there was a practice of correctional employees removing items from the commissary, on all four shifts, without paying for them but that the practice would not be tolerated." Moreover, he further indicated that employees who had participated in the practice could remain anonymous and pay for the items, describing the procedure to follow, and that in the future a container would be placed in the commissary for the correctional employees who remove items to pay for them at the time they are removed. It is inferred from Major Murphy's memo that he believed, and it is found, that it was common practice for correctional officers to remove items from the commissary without paying for them as described by the Respondents. Even though other correctional officers who participated in the practice were provided an opportunity to pay for the items they had removed from the commissary, Major Murphy denied the Respondents this same opportunity. Prior to the memo of June 17, 1991, and after Major Murphy's meeting with the Respondents, another officer who was named in an inmate statement admitted to Major Murphy that he had removed a cigar from the commissary without paying for it. No disciplinary action was taken against that officer. Also, additional correctional officers were named in additional statements by one inmate. Major Murphy determined the extent of the investigation (limited only to the evening of June 12, 1991), and who would be investigated and disciplined (only Respondents and the inmates). Before issuing the memo of June 17, 1991, Major Murphy had decided not to pursue an investigation of any additional correctional officers because he believed that the disciplining of Respondents had sent a message to the other officers that the practice would not be tolerated and because he did not want to have to suspend and possibly terminate the majority of his staff. No criminal charges were recommended or filed against Respondents. The investigating officer recommended, and Major Murphy agreed, that the incident did not warrant theft charges. Respondents have not been employed as correction officers since June 13, 1991. Respondents have no prior history of disciplinary action. The inmates who stole cigarettes on the evening of June 12, 1991, were also disciplined.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding the Respondents. Placing the Respondents on probationary status for six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June 1994. ERROL H. POWELL 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 17th day of June 1994.
Findings Of Fact The Alachua County Detention and Corrections Department (Exhibit 9) consists of 50 full-time employees (Exhibit 17). Authorized personnel spaces include the Correctional Director, the Correctional Assistant Administrator, the Correctional Inmate Consultant, the Correctional Recreation and Education Consultant, a Correctional Officer V, a Correctional Officer IV, six Correctional Officers III, five Correctional Officers II, and thirty Correctional Officers I (see Exhibit 10). Also authorized are a Secretary III who is the secretary to the Director, three Food Service Employees and one Accounting Clerk I. Alachua County has a total of about 786 County employees, including constitutional officers such as the Sheriff, Clerk of the Circuit Court, Tax Appraiser, Tax Collector, Supervisor of Elections and the County Commission Staff. This figure includes 91 professional employees. If employees of constitutional officers were excluded from a single bargaining unit for the County, such a unit would consist of 360 employees. The County is under a unified pay plan for all county employees. It retains the services of a pay plan consultant who does an annual review of pay, job descriptions and duties of all county employees. It also has a unified classification plan and personnel regulations that govern salaries, work hours, vacation, sick leave, leaves of absence and the like (Exhibits 10,11). The County Administrator is the chief executive officer for the county and, with respect to the Department of Corrections, supervises basic policies and budgetary functions. The department budget is proposed by the Director of the Department, submitted to the County Administrator for review and corrections, and then approved by the County Commission. The Director implements the plan and can change line items only by permission of the County Administrator and the County Commission. The only history of prior collective bargaining in the county was recognition of the Sheriff's office on or about May, 1972. The Police Benevolent Association is the bargaining agent for that unit. The position of the County at this time is that it is a co-employer with the Sheriff as to that unit. The current contract with sworn personnel includes about 133 employees. The Police Benevolent Association declined to be included in a county-wide unit of county employees. Alachua County is the subject of special state legislation which permits it to manage funds allocated to constitutional officers such as the Sheriff, Clerk of Circuit Court, Tax Assessor, and Tax Collector for the county (Exhibits 12-15). The functions of the Corrections Department include the detention of persons awaiting criminal trial, care and housing of prisoners serving sentences, work release and school release programs, classification and diagnostic services, recommendations to the court for referrals to these programs and recommendations for diversionary programs. Unlike most counties, the Corrections Department does not operate within or under the office of the Sheriff. The Department is conducting a modern concept in rehabilitation of offenders through a variety of programs which are designed to re-orient prisoners for more useful lives. To this end, the department secures grants which enable it to fulfill some of these functions. In hiring personnel, it looks for those who have a high school degree and preferably some college work in the social services area. When forming the department in 1973, most of the employees hired came "off the street", although some came from the office of the Sheriff and from other county departments. Correctional Officers carry identification as Special Deputies which empowers them to detain people for corrections only. This status is unique to them. They wear a modified uniform consisting of a blazer, slacks and tie. Correctional Officers carry arms in transporting prisoners to and from court and in supervising their recreational activities outside the correctional facility. The department has tried to get away from a chain of command concept to lessen a law enforcement image. Although it has done away with military titles there are still some personnel who use military titles such as Sergeant and Lieutenant in addressing personnel. Employees of the department have their most continuing contacts with the Sheriff's office because they are in the same building and have similar interests in connection with county prisoners. The Correctional Director is responsible to the County Administrator for all activities, operations and functions of the department. His duties include fiscal, plant, manpower planning, management, organization, staff selection and supervision, policy formulation, the establishment of programs for the department, and for the operation and maintenance of the detention center. He alone has the authority to hire, discharge, promote or discipline personnel of the department. He formulates the budget which is submitted through the County Administrator of the County Commission. He is assisted in the hiring process by a panel which includes himself or the Assistant Administrator, another department employee and either the inmate consultant or a faculty member from the University of Florida. The Assistant Administrator assists the Director by making recommendations as to departmental policy, securing grant applications,. and formulating departmental programs. He also makes recommendations to the Director as to personnel matters and assists in fiscal matters. The Director holds periodic staff meetings at which the Correctional Officers IV and V usually attend. The Correctional Officer V is the Commander of the Detention Center and is thus responsible for direct supervision of all personnel and operations at that facility. He carries out operational policy established by the Director in the form of orders and memoranda. He makes budget recommendations to the Director as to necessary equipment but is not directly involved in the budget process. He makes recommendations to the Director concerning all personnel actions affecting the Detention Center, to include leaves, promotions or terminations. He exercises direct supervision over the Correctional Officer IV and the shift commanders (Correctional Officer III). The Correctional Officer IV is under the general supervision of the Detention Center commander and is responsible for supervision of all logistical and support services of the center. He also assists the Commander in maintaining communication and coordination among shift commanders. He serves as the Acting Commander in the absence of the Correctional Officer V. The Correctional Officers III have direct supervision of Correctional Officers I and II in the operation of the center and related programs. They serve as shift commanders for three shifts of 8 1/2 hours a day each. Correctional Officers I and II perform essentially the same duties which involve primary responsibility to maintain physical custody and control of prisoners within the detention facility and while transporting inmates. Their secondary responsibility is support of program goals through communication and observation of behavior and inmate attitude which is reported to the shift commander or treatment staff. The Correctional Officer II also assists in supervision and on the job training for new employees. In the absence of the shift commander, the Correctional Officer II becomes responsible for the functions of the Detention Center and supervision of correctional officers on duty on that shift. The Correctional Recreation and Education Consultant is preferably an ex-offender who initiates programs and activities for the prisoner population, including various sports and games, competitions among the inmates, and assists the Correctional Inmate Consultant. The Correctional Inmate Consultant is a member of the personal staff of the Director. It is his responsibility to spend great portions of his workday in direct contact with the inmate population and to advise the Director on matters pertaining to the well-being, health, sanitation and programming activities of the inmates. He assists individual inmates with their problems and makes recommendations to the director concerning work release, furloughs, extra "gain time" and, in certain instances, disciplinary matters. He attends all staff meetings except those involving departmental personnel and advises the Director on matters relating to policies of the department with reference to inmate treatment and control. He is an ex-inmate and, in general, advises on the institutional climate. The Food Service personnel are cooks who prepare food for the institution in the cafeteria. They report to the Correctional Officer IV. The Secretary III is the secretary to the director of the department who handles confidential matters for him, including meeting agendas, taking and transcribing dictation, minutes of meetings, conferences and other activities.
Findings Of Fact At all times materiel hereto petitioners were inmates et Lake Correctional Institution (LCI) and were subject to discipline for failure to obey orders. Piccirillo was disciplined for failure to comply with an order to report to the infirmary or sick call. Piccirillo was aware that his name was posted on the bulletin board directing him to report to the medical department and et the time specified he failed to so report, was disciplined, and he lost gain time. A doctor visits LCI twice per week and inmates with medical problems can be seen by the doctor on these days. No patient is required to undergo medical treatment for minor ills if he so elects. Because of the limited time a doctor is available to LCI it is necessary that those inmates so designated see the doctor at the scheduled time. Inmates who do not understand an order may request clarification. If the inmate cannot read he is not punished for failure to obey written orders. Prior to disciplinary action being taken against an inmate for disobedience of orders, the disciplinary report is investigated and, after the investigator finds the charge to be true, discipline may be administered. Additionally, the inmate has a grievence procedure he may follow after the investigator recommends disciplinary action be taken. Occasionally, inmates are given orders by correctional officers which are unlawful. The inmate may obey the order and say nothing, he may obey the order and file a grievance, or he may refuse to obey he order and successfully defend the disciplinary report for failure to obey the order. It is not an offense for an inmate to refuse to obey an unlawful order.
Findings Of Fact At all times material hereto Petitioner was incarcerated at Union Correctional Institition within the custody and control of the Department of Corrections. On or about March 1, 1983, Petitioner submitted a request to be admitted to the Mutual Participation Program, also known as ''Contract Parole." Thereafter, Petitioner was considered for eligibility for that program by a classification specialist employed by the Department of Corrections and a parole examiner employed by the Parole and Probation Commission. On April 22, 1983, these two officials recommended against Petitioner's request based on Petitioner's "extensive criminal history," "history of drug abuse in the past," his escape from minimum custody while a patient at the Veteran's Administration hospital in Gainesville in December of 1979, and his involvement in a prison disturbance at Marion Correctional Institute in 1978. Chapter 23-20, Florida Administrative code, entitled Mutual participation Program was first adopted by Respondent on September 10, 1981. Respondent conducted rulemaking proceedings in 1982 which resulted in amendments to various portions of Chapter 23-20, Florida Administrative Code. These amendments became effective October 1, 1982. During the course of the rulemaking proceeding, Respondent published notice of the proposed changes in the Florida Administrative Weekly and, in addition, forwarded copies of the proposed changes to all Department of Corrections offices, including each correctional institution. The record in this cause is unclear as to whether these proposed changes were ever posted in the law library or other office at Union Correctional Institution. Petitioner contends that he was never afforded notice of the proposed amendments to Chapter 23-20, Florida Administrative Code, and library officials at Union Correctional Institution do not specifically recall ever having seen such proposed amendments. There are no facts of record in this proceeding from which it could be concluded with any certainty whether any of the provisions of Chapter 23-20, Florida Administrative Code, either as it was initially adopted or as it was amended effective October 1, 1982, were applied to Petitioner's request for participation in that program.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since August 10, 1988, certified by the Commission as a correctional officer. He holds certificate number A86-502-07. Respondent has spent his entire career as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department (hereinafter referred to as "Metro"). He currently holds the rank of corporal. On June 26, 1989, Respondent was a Correctional Officer I and assigned to the third floor of Metro's Pre-Trial Detention Center, which is also known as the Main Jail. He worked the 3:00 p.m. to 11:00 p.m. shift that day. During the eight month period prior to June 26, 1989, Respondent served as the acting supervisor of the third floor of the Main Jail during his shift. June 26, 1989, was Corporal Darlene Beasley's first day as the Main Jail's new third floor supervisor during the 3:00 p.m. to 11:00 p.m. shift. Respondent was one of the officer's under her supervision that day. On June 26, 1989, the third floor of the Main Jail housed approximately 220 inmates in three separate wings, "A" Wing, "B" Wing and "C" Wing. John Breedlove was one of these inmates. Breedlove was 19 years old. His height was approximately five feet, eight inches. His weight was approximately 210 pounds. Breedlove had the privilege of being a trustee. Consequently, his cell was in "B" Wing, which housed all of the trustees on the floor. Trustees are inmates who are given various tasks to perform in and around the Main Jail. They perform these tasks under the supervision of a Labor Supervisor and receive monetary compensation and gain time for their services. As a general rule, trustees are accompanied to and from their work assignments by their Labor Supervisor, who signs them out when he or she takes them from the floor and signs them back in when he or she returns them to the floor. Sometimes, however, a staff member other than a Labor Supervisor will assume the responsibility of escorting trustees to and from their work assignments. Escorting trustees to and from their work assignments lessens the likelihood that they will be successful in any efforts they may make while they are out of their cells to obtain contraband and distribute the contraband to other inmates at the facility. On June 26, 1989, Breedlove was assigned trustee duty in the rear lobby of the Main Jail, which is located on the first floor of the facility. The work was to be performed during the 3:00 p.m. to 11:00 p.m. shift that day under the supervision of Labor Supervisor Ricardo Gibson. Gibson signed Breedlove out at the beginning of the shift and escorted him to his work assignment on the first floor. Sometime thereafter Breedlove asked Gibson if he could return to the third floor to get a haircut and take care of some laundry. Gibson replied that Breedlove could do so, but only after he had completed his work assignment. Later that day, after he had done some, but not all, of the work he had been assigned, Breedlove encountered Beasley, who was on the first floor to obtain information concerning the whereabouts of certain inmates assigned to her floor. Breedlove told Beasley that he had completed his work assignment and requested that she escort him to the third floor. Beasley complied with Breedlove's request. Respondent had just finished giving the inmates in "A" Wing their dinner meal when he noticed Breedlove sitting on a bench outside the attorney interview rooms located on the third floor. Respondent asked Breedlove what he was doing there. Breedlove responded that he had returned to the floor to get a haircut and to do his laundry. Respondent admonished Breedlove for being on the floor and instructed him to return to his work assignment. Respondent thereupon continued his feeding of the inmates on the floor. After he had delivered to the inmates in "B" Wing their dinner meal, Respondent again saw Breedlove outside the attorney interview rooms. Respondent asked Breedlove what he was still doing there and reminded him that he had been told to return to his work assignment. Gibson then arrived on the scene. He too admonished Breedlove for leaving his work assignment. After Gibson arrived, Respondent continued his feeding of the inmates on the floor. After he finished feeding the inmates in "C" Wing, Respondent observed that, notwithstanding his and Gibson's prior admonishments, Breedlove was still on the floor. Respondent approached Breedlove and asked him why he had not followed his instructions to leave the floor and return to his work assignment. Breedlove's response was that Beasley had brought him back to the floor. Respondent then went to speak about the matter with Beasley, who was doing paperwork in the control booth on the floor. The control booth is a secure enclosed area situated adjacent to the third floor lobby where the elevators are located. It is constructed of concrete, concrete block, one quarter inch thick polished wire glass and steel mesh. Manning the control booth is a Correctional Aide, who from his vantage point in the front of the booth can look through the glass and observe activity that is taking place in the lobby area of the floor as well as on the corridors of all three wings of the floor. Correctional Aide Harold McCartney was manning the control booth during the 3:00 p.m. to 11:00 p.m. shift on June 26, 1989. Beasley was seated at a desk behind McCartney. Respondent walked up to Beasley and asked her if she had brought Breedlove back up to the floor. Beasley indicated that she had. Respondent and Beasley then discussed the matter further. The discussion resulted in Beasley agreeing to take Breedlove back downstairs to the rear lobby to finish his work assignment. She thereupon retrieved Breedlove. She then walked to the elevators on the floor. Breedlove followed behind her. Correctional Aide Gregory McKenzie was also waiting for an elevator to go downstairs. The elevator stopped and McKenzie and Beasley walked on. Just as Breedlove was about to walk on to the elevator, he uttered, in an irritated tone of voice, some profanity. Respondent heard Breedlove. This was the final straw as far as Respondent was concerned. He believed that Breedlove was no longer deserving of the privilege of being a trustee. Respondent therefore told Breedlove that he was "busted." In jail parlance, "busted" means removed from trustee status. Any correctional officer in the Main Jail has the authority to "bust" a trustee. Respondent ordered Breedlove to get off the elevator and to go to his cell to pack his belongings. Breedlove got off the elevator and appeared to be headed in the direction of his cell in "B" Wing when he stopped, turned around and just stared at Respondent. Respondent reacted by repeating his order that Breedlove go to his cell. Breedlove, however, did not move. Respondent then started walking towards Breedlove. Breedlove then turned his back to Respondent and made an obscene remark directed at Respondent. Given Breedlove's defiance, Respondent reasonably felt that he needed to take control of the situation and physically guide Breedlove to his cell. He thus walked up to Breedlove, who was somewhere between two to eight feet from the front of the control booth, and put his hand on Breedlove's shoulder to lead him to his cell. As Respondent grabbed Breedlove by the shoulder, Breedlove suddenly started to pull away. Respondent followed after Breedlove, grabbing him by the back of his pants while trying to maintain the grasp he had on his shoulder. The struggle ended abruptly when Respondent fell on top of Breedlove and they both went to floor. Before hitting the ground, Breedlove struck his face on one of the glass panels of the control booth, breaking the glass as well as the wires inside the glass. Although it may have appeared otherwise to those who witnessed the incident, Respondent did not intentionally push or shove Breedlove into the control booth glass. The only force that Respondent purposely used against Breedlove was that which was reasonably necessary to overcome Breedlove's physical resistance to Respondent's directives that he return to his cell. Breedlove started to bleed profusely after hitting the glass. Blood was streaming down his face and onto to his shirt. Respondent was more fortunate than Breedlove. He did not come in contact with any glass. He was startled by the breaking of the glass, but uninjured. After falling to the ground, he got off of Breedlove and backed away to regain his composure. He stood by as Beasley rushed to Breedlove's aid. Beasley helped Breedlove to his feet and took him to the jail clinic to receive medical assistance. Although Respondent did not offer any assistance, his help was not needed inasmuch as Beasley had the situation under control. Breedlove suffered multiple lacerations on his right cheek as a result of the incident. At the jail clinic, bandages were wrapped around his face to control the bleeding. Because of the nature of the injury, Breedlove was referred to Jackson Memorial Hospital (hereinafter referred to as "Jackson") for further treatment. At Jackson, Breedlove was seen by a nurse practitioner. A small piece of glass was removed from his right check and he received six stitches. After taking Breedlove to the clinic, Beasley went to the office of the shift commander, Lieutenant Francie D'Erminio, to report what had happened between Respondent and Breedlove. A short time thereafter, Respondent arrived at D'Erminio's office to tell her about the incident. D'Erminio ordered that the matter be investigated. An internal investigation of the incident was conducted. Following the completion of the internal investigation, Respondent was given a 15 day suspension by Metro. Respondent successfully appealed his suspension. He subsequently was promoted to corporal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1993.
Findings Of Fact The Petitioners, Luis A. Pacheco, Joel Estremera, Felipe Pichardo and Owen D. Denson, are inmates in the custody and control of the Department. The Department is a state agency. On December 26, 1991, the Petitioners filed a Petition for Determination of the Invalidity of an Existing Rule against the First Respondents. The Petition was filed against "John T. Shaw, Superintendent, Glades Correctional Institution, et. al." In the Petition, the Petitioners challenged the validity of "the revision of Glades Correctional Operating Procedure 91-07, sec. 7.09" pursuant to Sections 120.54 and 120.56, Florida Statutes. The Petition failed to challenge a rule or an alleged rule of any "agency" as that term is defined in Section 120.52(16), Florida Statutes. On January 10, 1992, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered granting a Motion to Dismiss filed by the First Respondents and giving the Petitioners an opportunity to file an amended petition on or before January 21, 1992. No amended petition was filed by the Petitioners on or before January 21, 1992. Therefore, on January 29, 1992, an Order Concerning Proposed Final Orders was entered informing the parties that they could file proposed final orders on or before February 24, 1992, and that this Final Order would be entered on or before March 16, 1992. On February 7, 1992, the Petitioners filed an Amended Petition for Determination of Invalidity of An Existing Rule and requested that it be accepted. On February 25, 1992, an Order Concerning Amended Petition was entered accepting the Amended Petition and informing the parties that this case would be disposed of by a summary final order. In the Amended Petition the Department was named as the Respondent. Although the amended petition indicates that the Petitioners are challenging Rule 33-5.01, Florida Administrative Code, pursuant to Sections 120.52, 120.54 and 120.56, Florida Statutes, in fact the Petitioners are challenging a memorandum issued at Glades Correctional Institution changing Policy and Procedure Directive 3.04.12 (hereinafter referred to as the "Policy and Procedure Directive"). In the Amended Petition the Petitioners allege, in part, the following: Respondent through his designee, John T. Shaw, has adopted exhibit " A " as a rule, which governs petitioners [sic] visitors to select from, " Saturday or Sunday as their regular visiting day. Petitioners are therefore substantially " affected " and this case includes an invalid exercise of delagated [sic] authority because the department of corrections failed to promulgate it's Policy and Procedure Directive number 3.04.12 as a rule, contrary to the requirements of section 944.09, Florida Statutes. The Amended Petition fails to challenge a rule or an alleged rule of any "agency" as that term is defined is Section 120.52(16), Florida Statutes.
The Issue This case concerns the issue of whether Baker Correctional Institution Operating Procedure 78-G-1 is a rule not promulgated pursuant to Section 120.54, Florida Statutes (1981) , and therefore is an invalid exercise of delegated legislative authority. The Petitioners initiated this challenge to Operating Procedure 78-G-1 by the filing of their petition with the Division of Administrative Hearings on December 2, 1983. The case was assigned to the undersigned Hearing Officer on December 12, 1983, and a formal hearing was held on January 5, 1984. At the formal hearing, the Petitioners called as witnesses Wilfred M. Ellis, James C. Wolf, Willard A. Jackson, and David Keith Allen. Petitioner Joe Lewis Holland testified on his own behalf. The Petitioners offered and had admitted into evidence Petitioners' Exhibits 1-3. The Respondent offered no evidence. The Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings of fact and conclusions contained in this order, they are rejected as not supported by the evidence or unnecessary to the resolution of this cause.
Findings Of Fact Petitioners are inmates incarcerated at Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a prison operated by the Department of Corrections. The Superintendent of Baker Correctional Institution issued Operating Procedure 78-G-1, which was originally issued on June 21, 1978, and revised April 11, 1983, and is entitled "Preparation of Legal Documents." This operating procedure is addressed to all inmates of Baker Correctional Institution and sets forth the procedures inmates are to follow in obtaining all necessary support to prepare legal documents. Section X of that operating procedure is titled "Copies of Legal Documents" and provides: The Institution shall provide copying services for inmates who need legal documents and accompanying evidentiary material copied for submittal to courts or administrative bodies. A charge of 15 cents per page for all copies provided to inmates will be made and collected in advance of providing the copies to the inmate. Copying services shall be provided without charge if there is less that $5.00 in the inmate's account. The inmate may make arrangements for copying services by writing his Classification Specialist. Each Specialist will arrange for the copying to be completed as soon as practical and will then complete procedures to have the inmate be properly charged for the service. This operating procedure applies only within Baker Correctional Institution. This operating procedure was not promulgated as a rule in accordance with the procedures set forth in Florida Statute 120.54 (1981) The Superintendent considered the operating procedure to be authorized by those statutes, rules and directives contained in the referenced paragraph of the Operating Procedure No. 78-G-1. Those references are: Florida Statutes Chapter 944.09, 944.11, 945.21 and 20.315 Department of Corrections Rules & Regulations 33.03.05 Department of Corrections Policy and Procedure Directive No. 4.07.06 and 4.10.51. Under the Operating Procedure 78-G-1, an inmate desiring copies to be made of legal materials must submit a written request for the copies to his Correctional Probation Officer (previously called Classification Specialist) Generally, all such requests are answered within seven (7) days of receipt of the request. If there is a short deadline for filing these materials with a court or other body, then the officer expedites the request. Each officer has the discretion to complete the copying of materials in a time period shorter than seven (7) days. If the inmate has an extremely short deadline to meet, then a pass can be obtained for the inmate to personally go to the library building to have copies made. Subsequent to the issuance of Operating Procedure 78-G-1, the Department of Corrections promulgated Rule 33-3.051, titled "Copying Services for Inmates." This rule is not being challenged in the instant case and provides: All institutions and facilities shall provide photographic copying services to inmates submitting legal documents and accompanying evidentiary materials to courts and administrative bodies. Documents will be copied only if they are necessary to initiate a legal or administrative action or if they must be filed or served in a pending action. The number of copies made shall be the number required to be filed and served according to the rules of the court or administrative body: one additional copy shall be made for the inmate to keep if the original is filed or served. Cases, statutes, and other reference materials are not evidentiary materials and will not be copied to accompany legal documents. Inmates will be charged $0.15 per page for standard legal or letter size copies, or if special equipment or paper is required the institution may charge up to the estimated actual cost to the institution of making the copies. Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there is $5.00 or less in his inmate account at the time any copies are made. If an inmate requesting copies has more than $5.00 in his account he shall be required to pay for copies furnished him at the rate of $0.15 per page until the costs reduce his account to $5.00. Copies for which the inmate is unable to pay shall be provided free and the expense will be borne from general operating funds of the institution. No attempt will be made to recover such expense from money later deposited in the inmate's account. The librarian may require an inmate for whom copies are to be made to seal the copies, except for his file copy, in envelopes and mail them immediately. This requirement, if imposed, shall be explained to the inmate before copies are made. Specific Authority 20.315, 945.04, 945.21FS. Law Implemented 20.315, 945.04, 945.21 FS. History--New It was stipulated by the parties that the Petitioners have standing to challenge Operating Procedure 78-G-1. On one occasion, Petitioner Joe Lewis Holland requested copies through Mr. Townsend and Mr. Townsend turned the request over to Classification Officer James C. Wolf for processing.
