The Issue Whether Rules 33-5.006(8) and 33-5.008(16), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Larry Hendrix, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rules at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. At all times relevant to this proceeding, the Petitioner's marital status was single. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. . . . [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code, titled "Visitors." Visitation with approved family members or friends is encouraged by the Rule 33-5.006(7), Florida Administrative Code, to maintain home and community ties. Rule 33-5.006(8), Florida Administrative Code, provides: (8) Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified, and the spouse is removed from the list. The Petitioner presented no evidence during the formal hearing concerning Rule 33-5.006(8), Florida Administrative Code. The weight of the evidence failed to prove that Rule 33-5.006(8), Florida Administrative Code, is an invalid exercise of delegated legislative authority. Rule 33-5.008(16), Florida Administrative Code. During part of 1990, Terry Moore was incarcerated at Union Correctional Institution, the same Institution the Petitioner in incarcerated in. Vianna Austin is the sister of Terry Moore. Ms. Austin is not incarcerated by the Respondent. Ms. Austin and the Petitioner are not related. In early 1990, Ms. Austin submitted a visitor information form to the Respondent in an effort to be placed on the Petitioner's approved visiting list. By letter dated January 30, 1990, the Respondent informed Ms. Austin that she could not be added to Petitioner's visiting list because she was already on the visiting list of her brother, Terry Moore. Ms. Austin made more than one request to be placed on the Petitioner's visiting list and her requests were denied by the Respondent for the reason stated in the January 30, 1990, letter. In late 1990, Terry Moore was moved from Union Correctional Institution to another prison. During the formal hearing, Terry Moore was incarcerated in Avon Park Correctional Institution. Subsequent to Terry Moore's transfer out of Union Correctional Institution, Ms. Austin again requested approval to visit with the Petitioner. Ms. Austin's requests to be placed on the Petitioner's visiting list was denied by the Respondent before and after Terry Moore's transfer because she was an approved visitor of Terry Moore. The Petitioner also requested that the Respondent approve Ms. Austin as his visitor. These requests, which were made before and after Terry Moore's transfer from Union Correctional Institution, were denied by the Respondent because she was on Terry Moore's approved visiting list. The Respondent's denial of Ms. Austin's requests to visit the Petitioner and the Respondent's denial of the Petitioner's requests for visitation by Ms. Austin were based upon Rule 33-5.008(16), Florida Administrative Code. Rule 33-5.008(16), Florida Administrative Code, provides: (16) Regular and special visitors cannot be on more than one inmate's approved visiting list, except for immediate family. A visitor may not visit an inmate and then decide to visit further with friends of that inmate. The Respondent interprets Rule 33-5.008(16), Florida Administrative Code, to prohibit a person from visiting more than inmate unless each inmate the person visits is part of the inmate's immediate family. The Respondent's interpretation applies regardless of the location of the inmates the visitor wishes to visit. Rule 33-5.008(16), Florida Administrative Code, was promulgated by the Respondent to prevent triangle relations. Triangle relationships tend to cause security problems, such as fights between inmates and/or altercations between visitors and inmates and to deter romantic relationships with inmates. The Respondent makes approximately 100,000 inmate transfers each year. Therefore, although inmates may not be in the same institution at a given time, it is not reasonably possible for the Respondent to insure that inmates that have the same visitor on their visiting list are not at some later time transferred to the same institution. Some inmates have been able to get visitors on their visiting lists even though the visitor was on another inmates visiting list in violation of Rule 33-5.008(16), Florida Administrative Code. The weight of the evidence failed to prove that the Respondent allows such visitation if the Respondent is aware of the fact that the visitor is already on one approved visiting list. The weight of the evidence failed to prove that Rule 33-5.008(16), Florida Administrative Code, does not establish adequate standards for decisions by the Respondent, or vests unbridled discretion in the Respondent or that it is arbitrary and capricious.
Findings Of Fact The Respondent Eric Runge holds an inactive correctional officer certificate bearing number 502-2839. On January 9, 1983, the Respondent Runge was employed as a correctional officer at the Hendry Correctional Institute. On that date, the Respondent and four other officers were involved in the movement of a prisoner, Raymond Russell Ford, from one confinement area to another. Prior to the transfer, a supervisor, Lt. McNaughton, met with the officers involved in the transfer and explained to them that he wanted to see the inmate hurt. The officers, including the Respondent, went to the inmate's cell and found him asleep. Ford was awakened by one of the officers and handcuffs and leg irons were secured to his hands and feet. During the transfer, the inmate was placed on the ground several times, here he was struck and kicked by three of the officers. The Respondent was approximately 20 feet in front of the inmate when this occurred. The Respondent and another officer helped the inmate to his feet and turned him over to Sergeants Thompson and DeSilvestri. The inmate was tripped repeatedly by the two officers. This was visible to the Respondent since he was approximately 15 feet behind the inmate and escorting officers. At no time did the inmate fight with the officers or physically resist when they tripped and hit him. When the inmate arrived at his assigned cell, the Respondent and Officer Wilkerson contacted Betty White, a medical technician, in order to alert her of possible injuries to the inmate. Ford's injuries were not serious and consisted of multiple abrasions and scrapes to the face, legs and arms. When this incident came to the attention of prison authorities, all the officers involved were requested to give statements under oath concerning the transfer of the inmate. The Respondent was aware that he was required by Department of Corrections rules to truthfully answer inquiries made by the prison inspector. However, the Respondent admitted violating Department rules by falsifying his report to the prison inspector by denying that excessive force was used during the transfer of the inmate. This false report was made as part of an unsuccessful attempt by the officers involved to cover up the incident. As a result of this incident, several officers lost their jobs at Hendry and the Respondent's effectiveness as a correctional officer has been seriously reduced due to his role in the transfer and subsequent cover up. The involved officers are labeled as "dirty employees" which limits their ability to effectively discharge their duties inside the prison.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner suspending the certificate of the Respondent Eric C. Runge for three months. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301 Janet E. Ferris, Esquire General Counsel Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Eric C. Runge 1643 North Flossmore Road Fort Myers, Florida 33907 Robert R. Dempsey, Executive Director, Dept. of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 83-2302 CJSTC CASE NO. CORO18-0274 ERIC C. RUNGE Certificate Number: 502-2839 Respondent. /
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 2-1.007, Florida Administrative Code and "[a]ny and (all) State Attorney memorandums, statements, policy, rules, directive, consistent to this practice" were challenged. The Challenged Rule deals with the issuance of Attorney General opinions. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. The confusion is also caused by the failure of the Petitioner to actually be challenging the Challenged Rule. Although the Petitioner contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the alleged failure of the State Attorney of the Eighth Judicial Circuit to take action against employees of the Department of Corrections and the failure of the Attorney General of the State of Florida to do anything about it. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule is unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7189R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Corrections, the Respondent in case number 91-7189R, as a Respondent and addresses his challenge to other rules, internal operating procedures and directives of the Department of Corrections. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule or the other materials challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
Findings Of Fact On December 20, 1991, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rules 33-22.005(5) and 33- 22.007(2)(c), Florida Administrative Code pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rules. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-22.005(4), Florida Administrative Code, provides the following: Section III. Report of Investigation. Upon receipt of the Disciplinary Report, the Senior Correctional Officer shall review the report and, when the facts suggest that the alleged violations is significant, he shall cause the report to be forwarded to the Correctional Officer Chief. Upon approval of the Correctional Officer Chief, or in his absence the Senior Correctional Officer, an impartial investigation of the charge against the inmate shall be conducted. This investigation shall be completed without unreasonable delay. Any delay at any state must be justified in the report. The Correctional Probation Supervisor shall review the report and cause an impartial investigation to be conducted for inmates participating in the Supervised Community Release Program. The investigating officer is responsible for obtaining the inmate's version of the offense as well as contacting the charging officer and any other staff members or inmates who have information pertaining to the allegation and the charge. The inmate charged shall be offered staff assistance and asked if he has any material witnesses to offer in his behalf. If the inmate has no witnesses, it must be noted in the report. If names of witnesses are given, the investigating officer shall then interview both inmate and staff witnesses and, if appropriate, have the Witness Statement Form DC4-856 completed. If inmate witnesses or staff witnesses are not contacted, a statement as to why they were not contacted must be included. Opinions as to innocence or guilt shall not be made by the investigating officer. The investigator shall sign and date the report. Rule 33-22.007(2)(c), Florida Administrative Code, provides the following: (2) The Hearing Officer or Disciplinary Team can request further investigation or evidence, the appearance of additional witnesses or the statements of unavailable witnesses. . . . . Witnesses shall not be called or certain information disclosed if doing so would create a risk of reprisal, undermine authority or otherwise present a threat to the security or order of the institution. The inmate witnesses must be willing to testify but may offer an oral or written statement to the investigating officer in lieu of personal appearance. Notations shall be made in the report with reasons for declining to call requested witnesses or for restricting any information. The Petitioner has alleged that the Challenged Rules are invalid because the rules are "contrary to due process contained in enabling legislation. Section 20.315, Florida Statutes (1989)" and are vague, arbitrary and capricious. The Petition does not include any alleged facts supporting the Petitioner's assertion that the Challenged Rules are "arbitrary and capricious."
Findings Of Fact On December 3, 1991, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: provides maximum penalties for major violations, but fails to designate, or define minor infractions, or provide sufficient guidelines to guide the agency in exercise of its discretion to designate minor infractions as opposed to major infraction listed by the rule. More particularly, the rule provides in part that "any portion of either penalty may be applied." Applying either penalty listed in this rule, which provides for loss of gaintime or disciplinary confinement, is definitionally a major violation. . . . The Petition and the Amended Petition do not included any alleged facts supporting the Petitioner's assertion that the Challenged Rules are "arbitrary and capricious."
Findings Of Fact The Petitioners, Donald Eugene Halpin, Richard Edward Jackson and Jeffery Lynn Fowler, are inmates under the supervision of the Respondent. Petitioners Halpin and Fowler are incarcerated at Glades Correctional Institution. Petitioner Jackson is incarcerated at Martin Correctional Institution. The Respondent is the Department of Corrections, an agency of the State of Florida. The Petitioners have challenged Rules 33-6.003, 33-6.0045 and 33-6.009, Florida Administrative Code. The Challenged Rules govern transfers of inmates and custody classification of inmates. The Challenged Rules were amended by the Respondent after the Respondent enacted and applied several emergency rules governing inmate transfers and custody classification of inmates. These emergency rules were adopted during 1990 and 1991. The Petitioners have alleged that the Challenged Rules are "arbitrary and capricious as applied to the Petitioners . . . ." The Petitioners have also alleged that the Challenged Rules are invalid because they were amended "through prohibited acts as defined in Chapter 120.54(9)(c), Fla. Stat., when the Respondent ran two emergency rules (33ER91-1 & 33ER91-2) back-to- back so that Amended Chapter 33-6, etc. (1991) could be implemented."
The Issue Whether Rules 33-3.005(2), (7) and (11), 33-3.0051, and 33-5.006(8), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact The Petitioner and the Intervenor; Standing. The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections. At all times relevant to this proceeding, the Petitioner was subject to the rules of the Respondent. At all times relevant to this proceeding, the Petitioner's marital status was single. At all times relevant to this proceeding, the Intervenor, Ann Hintenlang, was a married woman. The Intervenor is not related to the Petitioner. The Petitioner and the Intervenor have attempted to get approval for the Intervenor to visit the Petitioner. The Respondent has refused to approve the Intervenor as a visitor of the Petitioner because she is a married woman unrelated to the Petitioner. The Respondent's rejection of the Intervenor as a visitor is based upon the Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida and the operation of the Respondent. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted governing mail, visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code, titled "Visitors." Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following: Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made. . . . Rule 33-5.006(7), Florida Administrative Code, provides: (7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere. Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code. Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides: (3) No visit should be denied: . . . . (c) for any reason unrelated to the security, order or rehabilitative objectives of the institution. Rule 33-5.006(8), Florida Administrative Code, provides the following: (8) Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Respondent interprets the portion of Rule 33-5.006(8), Florida Administrative Code, challenged in this proceeding and emphasized in finding of fact 15, to allow a single male inmate to have a single female visitor and, therefore, prohibits a single male inmate from receiving visitation from a married female visitor not related to the inmate. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, as argued in its proposed final order, is intended "in part to deter potential problems involving visitors to the institution and to promote security of the institution and the inmates because of fights and conflicts which have occurred in the visiting park." See proposed finding of fact 7 of the Respondent's Proposed Final Order. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 is uniformly applied by the Respondent. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Rule 33-3.005, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.005, Florida Administrative Code, other than the rule itself. The Petitioner has challenged Rule 33-3.005(2), (7) and (11), Florida Administrative Code. Rule 33-3.005(2), Florida Administrative Code, provides: (2) Legal mail shall be defined as: Mail to and from municipal, county, state and federal courts. Mail to and from state attorneys. Mail to and from private attorneys. Mail to and from public defenders. Rule 33-3.005(7), Florida Administrative Code, provides: (7) The institution shall furnish postage for mail to courts and attorneys and for pleadings to be served upon each of the parties to a lawsuit for those inmates who have no funds at the time the mail is submitted to the mailroom, but not to exceed payment for the original and two copies except when additional copies are legally required. The inmate shall be responsible for proving that copies in addition to the routine maximum are legally necessary. Rule 33-3.005(11), Florida Administrative Code, provides: (11) "Privileged mail" is a category that includes, mail to and from public officials, governmental agencies and the news media. Privileged mail may be opened only for inspection for contraband and only in the presence of the inmate. Such mail may not be read except for signature and letterhead. If necessary, it may be held for a reasonable time pending verification that it was sent by or is properly addressed to any attorney, a court, a public official, a governmental agency or a member of the news media. The weight of the evidence failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent. Rule 33-3.0051, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.0051, Florida Administrative Code, other than the rule itself. Rule 33-3.0051, Florida Administrative Code, governs the manner in which institutions of the Respondent are required to provide photographic copying services to inmates. Although the Petitioner has not designated which specific language in Rule 33-3.0051, Florida Administrative Code, he believes is invalid, the Petitioner has evidently challenged the requirement of Rule 33-3.0051(3), Florida Administrative Code, that "[i]nmates will be charged $0.15 per page for standard legal or letter size copies . . . " and the following portion of Rule 33-3.0051(4), Florida Administrative Code: (4) Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there are no funds in his inmate account at the time the copies are completed and the assessment of cost is determined. If an inmate requesting copies has any funds 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 zero. . . . The weight of the evidence failed to prove that Rule 33-3.0051, Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.0051, Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent.
The Issue Whether Rules 33-3.0081(9)(l), 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck, Mike Ramadanovic and Kenneth Boudreaux, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules challenged in these cases, Rules 33-3.0081(9)(l), 33-3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code (hereinafter referred to as the "Challenged Rules"). Petitioner Van Poyck is on death row, which is considered administrative confinement. All exercise privileges for Petitioner Van Poyck have been suspended for almost three years. Petitioner Ramadanovic at the time of the final hearing was in close management confinement. All exercise privileges for Petitioner Ramadanovic have been suspended for almost one year. Petitioner Bourdreaux at the time of the final hearing was in close management confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Challenged Rules. Rule 33-3.0081(9)(l), Florida Administrative Code, governs exercise of inmates who have been placed in "administrative confinement". Administrative confinement is the removal of an inmate from the general inmate population for one or more specified reasons. Rule 33-3.0081(1), Florida Administrative Code. Rule 33-3.0081(9)(l), Florida Administrative Code, provides the following: (l) Exercise -- Those inmates confined on a 24-hour basis excluding showers and clinic trips may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule shall be implemented to ensure a minimum of two hours per week of exercise out of doors. Such exercise periods shall be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. The superintendent or assistant superintendent may restrict exercise for an individual inmate when the inmate continues to pose a serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates; by involvement in acts which seriously interfere with the staff's daily security functions, or by actions demonstrating an extreme escape risk. Inmates shall be notified in writing of this decision and may appeal through the grievance procedure. The denial of exercise shall be for the shortest length of time to accomplish the goal of safety, security and order within the institution and shall be documented on Form DC4-814. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not compromise the safety or security of the institution. Rule 33-3.0083(9)(i), Florida Administrative Code, governs exercise of inmates who have been placed in "close management". Close management is the "long-term single cell confinement of an inmate apart from the general inmate population, where the inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0083(1), Florida Administrative Code. Rule 33-3.0083(9)(i), Florida Administrative Code, provides the following: Exercise -- Those inmates confined on a 24-hour basis, excluding showers and clinic trips, may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule should be implemented to ensure a minimum of 2 hours per week of exercise outside of cell. Such exercise periods will be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not threaten the safety or security of the institution. Rule 33-3.0084(1)(n), Florida Administrative Code, governs exercise of inmates who have been placed in "disciplinary confinement". Rule 33-3.0084(1)(n), Florida Administrative Code, provides the following: (n) Exercise -- Those inmates confined on a twenty- four hour basis (excluding showers and clinic trips) may exercise in their cells. However, if confinement extends beyond a thirty-day period, an exercise schedule should be implemented to ensure a minimum of two hours per week of exercise outside of the cell. Such exercise periods should be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts show that such exercise periods should not be granted. Restrictions may also be placed on the exercise periods by medical staff. The reason for any exercise restrictions shall be documented. Period of Outdoor Exercise. The Challenged Rules all provide that inmates may exercise in their cells and that "a minimum of two hours per week of exercise outside of the cell" should be provided to inmates in administrative confinement, close management and disciplinary confinement. Unless specified otherwise, all references to "inmates" in this Final Order are to an inmate in administrative confinement, close management or disciplinary confinement. At Florida State Prison, non-death row inmates subject to the Challenged Rules are given an opportunity to attend one, two-hour exercise session a week. If an inmate misses a session for medical or attorney "call out", a holiday or inclement weather, the session is not made up. The Challenged Rules do not specifically require that missed sessions be made up. On their face, the Challenged Rules provide that two hours of exercise should be provided without indicating any exceptions. Rule 33-3.0081(9)(l), Florida Administrative Code, is mandatory: two-hours of exercise must be provided each week. The amount of time inmates are allowed to exercise is affected by the budget and staff of the Respondent. Because of lack of funds and staff, the Respondent is not able to provide more exercise time to non-death row inmates subject to the Challenged Rules. At Florida State Prison, a maximum security prison, there are thirteen wings housing inmates. Ten wings house inmates (including four housing inmates on death row) in various types of confinement status. Nine of the ten wings have a separate area, referred to as a "yard", in which inmates may exercise outdoors. There are two correctional officers on duty at each of the yards during the outdoor exercise period for non-death row inmates subject to the Challenged Rules. One sergeant also rotates between the yards. Four to five correctional officers are required to take inmates in and out of the yards. Each inmate must be strip searched, handcuffed with his hands behind his back and then escorted into the yard. Exercise Yards. The Challenged Rules do not specify the size of the area in which outdoor exercise to be provided to inmates. The Challenged Rules also do not specify the number of inmates that may be placed in an area for outdoor exercise. Yards at Florida State Prison consist of a fenced concrete slab. The yards for non-death row inmates are approximately 24' by 33', or 792 square feet. Usually 17 inmates are placed in the yard next to the inmates' wing at a time. The number of inmates in the yard on occasion may be 20 to 25. This is the exception, rather than the rule. Recreational Equipment. The Challenged Rules do not require that recreational equipment be provided to non-death row inmates. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, provide that recreational equipment may be available for the exercise period if it does not compromise the safety or security of the institution Rule 33-3.0083(9)(i), Florida Administrative Code, is silent concerning recreational equipment. Recreational equipment is not provided to inmates during exercise at Florida State Prison. Inmates tend to fight over recreational equipment and to abuse it when it is provided. In light of the findings of fact, infra, concerning death row inmates, the evidence failed to prove that the failure to provide non-death row inmates with recreational equipment is arbitrary or capricious. Although there is a rational and reasonable reason for not providing recreational equipment to inmates who have proven to be a disciplinary problem (including some death row inmates) the Respondent is evidently prohibited from withholding recreational equipment for death row inmates by court decree. No such decree applies to non- death row inmates. Yard Suspension. The Challenged Rules provide that exceptions to the provision for outdoor exercise may be made "only when clear and compelling facts can document such exercise periods should not be granted." Rule 33-3.0083(9)(i), Florida Administrative Code. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, contain very similar language. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, do not specify who may decide who is to be denied exercise in the yard, referred to as being placed on the "yard suspension list", or the specific reasons for placing an inmate on such a list. The various institutions are given discretion to decide who will place an inmate on the yard suspension list and the reasons for such suspensions. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, also do not specify the procedures for placing an inmate on the yard suspension list, do not require periodic review of the list, do not specify a maximum period of time an inmate may be on the list and do not specify the conditions which must be met for an inmate to be removed from the yard suspension list. Rule 33-3.0081(9)(l), Florida Administrative Code, provides who may restrict exercise, requires that there be a "serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates" and other acts, requires that inmates be notified in writing and provides that denial of exercise be for the shortest length of time possible. There is a list of inmates at Florida State Prison who have been denied yard exercise. Inmates are placed on the yard suspension list because of security problems similar to those specified in Rule 33-3.0081(9)(l), Florida Administrative Code, caused by an inmate. The procedure for placing an inmate on the yard suspension list is as follows: The chief security officer recommends that an inmate be placed on the list. The recommendation of the chief security officer is reviewed by a team of senior correctional officers and the superintendent. The superintendent makes the final decision of whether an inmate is placed on the yard suspension list. Any inmate placed on the list is notified in writing and may appeal the decision through the grievance procedure. Chapter 33-29, Florida Administrative Code. The following procedure is followed to determine whether an inmate is removed from the yard suspension list: The list is reviewed monthly by the team of senior correctional officers that recommends the placement of an inmate on the list. If an inmate's behavior demonstrates that he has adapted to the institution and is no longer acting out in such a manner to create a security problem, a recommendation is made to the superintendent to remove the inmate's name from the list. The superintendent makes the final decision of whether an inmate's name is removed. Inmates are placed on the yard suspension list for the shortest period of time necessary to accomplish the goal of changing the inmate's behavior and to eliminate the threat to security caused by the inmate. Inmates on the yard suspension list are still allowed to exercise in their cells. Although cells are small and exercise is not necessarily easy in the cells, inmates may do elevated push-ups, step-ups, and jog in place. There are at any given time approximately 100 inmates at Florida State Prison on the yard suspension list. Inmates may be kept on the yard suspension list for years. Inmate Jimmy Stephens has been on the yard suspension list since February, 1990, and was previously on the yard suspension list for over fifteen years. Petitioner Van Poyck was placed on the yard suspension list upon his arrival at Florida State Prison on December 28, 1988, and remained on the list until January 7, 1992. Death Row Inmates. Inmates on death row are in administrative confinement and are, therefore, subject to Rule 33-3.0081(9)(l), Florida Administrative Code. Inmates on death row are provided two, two-hour exercise sessions each week. A total of four hours of exercise. If an exercise session is missed by a death-row inmate, the session is made up. The yards provided to death row inmates are larger than the yards provided to non-death row inmates. The yards for death row inmates at Florida State Prison are 71' by 69' (4,899 square feet), 80' by 64' (5,120 square feet), 62' by 91' (5,642 square feet) and 74' by 80' (5,920 square feet). Approximately 24 to 30 death row inmates are placed in the yard next to the inmates' wing at a time. Death row inmates are provided with a variety of recreational equipment. The amount of exercise time, the size of the yards and the amount of recreational equipment provided to death row inmates was agreed to in a consent decree in a federal court proceeding involving the Department of Corrections.
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
