Findings Of Fact Douglas L. Adams is an inmate at Union Correctional Institution. On August 26, 1985, he was awakened early in the morning and brought before a disciplinary hearing for an alleged violation of institutional rules and regulations. Prior to the hearing, he was advised by a correctional officer to pack up all his personal property and to bring it with him to the hearing. Mr. Adams took with him as much as he could which included his clothing and other personal effects, but he was unable to carry all he owned with him at one time. He did not ask for either help in carrying his property or a cart to carry it in prior to leaving his cell area to go to the hearing. When he arrived at the movement center where the hearing was to be held, he advised the authorities there that he did not have all his property with him. At that point, he asked for help or the use of a cart to go get the rest of his property but he was refused because no cart was there. As a result, he went to the hearing leaving some of his property in his cell area and while in the hearing, contends he was required to leave his property in the control center. This property was secured in a storage room behind the control center which, while not locked, was not available for access to other inmates unless they were accompanied by a corrections officer. When the hearing was over and Mr. Adams, who had been directed to administrative confinement requested to go back to his former cell area to get the rest of his property, his request was refused. His property was inventoried by UCI personnel at that time, but because in his opinion the inventory was not complete, Mr. Adams refused to sign the form. When he was released from administrative confinement he claims he did not get all his property back. He relates that he was told he had forfeited whatever property he had not brought to the hearing. As a result, he filed a complaint on September 16, 1985, which was subsequently denied. Petitioner has been incarcerated in 7 or 8 institutions within the Department of Corrections including Florida State Prison, River Junction Correctional Institution, Baker Correctional Institution, Polk Correctional Institution, Old Unit, the Reception and Medical Center, and DeSoto Correctional Institution. At each one of these institutions a rule similar to this one was in existence. At Baker Correctional Institution, the inmate was required to bring his mattress as well. Robert Craig has been in prison for a total of 27 years and has been incarcerated in almost every major penal institution in the State of Florida that was built prior to the last five years. At Avon Park Correctional Institution he underwent a disciplinary hearing and was told at the time to bring all his personal property with him to the hearing. While in the hearing, he was required to leave all his property outside in the hall. At Cross City Correctional Institution the guards took him to the hearing without his property, bringing his property along afterwards. In essence, at all the institutions where he was incarcerated, there was some variation of the same procedure regarding his personal property. He either had to bring it to the hearing or it was packed up prior to the hearing. At no institution was his property inventoried prior to the hearing. As a result, he has lost personal property including a calculator for which he was subsequently reimbursed by the institution. According to Mr. Craig, if the inmate does not bring his personal property with him he either is given a deficiency report or is precluded from going back to get it when the hearing is over. Sgt. Denmark has worked for approximately 8 1/2 years with the Department of Corrections, all at UCI, where he formerly worked at the movement center. One of the functions he performed there was to handle prisoners coming for a disciplinary hearing. The rule as explained to him regarding the inmates' personal property is that the inmate is required to bring all of it with him to the hearing. Once the property is brought with the inmate to the hearing, the inmate is free to either take it into the hearing with him or to leave it in the storage room in back of the movement center during the hearing. If the inmate is sentenced to disciplinary confinement as a result of the hearing, in that case, and at that point, the inmate's property is inventoried. If the inmate is not sentenced to disciplinary confinement, the property is returned to the prisoner who is returned to his area. In the instant case, Mr. Denmark heard the Petitioner tell Sgt. Howe, when he arrived at the movement center, that he had left some of his property in his cell. However, when Adams went into his hearing, he neither took his property with him nor requested that it be secured. According to Mr. Cunningham, the Chief Classification Supervisor, the Union Correctional Institution Policy, (85-52.9 B1) requires inmates to bring all their property to disciplinary hearings. It is an old policy, and the reason for it is to protect the property from theft. In a disciplinary hearing, there is a chance that an inmate might not get back to his old cell to retrieve his property after the hearing. For security reasons, institution officials prefer not to take a prisoner back to his old cell after a hearing because, at that point, he is often angry as a result of the hearing and disruptive. All Department of Corrections' institutions in the region incorporating UCI, except Florida State Prison, have a similar policy. Inquiry of corrections personnel at the agency headquarters in Tallahassee reveals that most major DOC facilities have a similar policy. There are a total of 33 other facilities which hold less than 100 inmates each. These smaller institutions do not, generally, have a similar policy and Florida State Prison has a different situation because of the different security problems. It is the needs of the institution, however, which determine the use of the policy. Mr. Cunnningham is aware of Mr. Adams' hearing and the complaint filed as a result thereof. Upon inquiry it was determined that Mr. Adams had failed to establish a loss and the complaint was denied. Mr. Cunningham does not know whether there was an investigation into the loss of the property left in the cell. It is Mr. Cunningham's understanding that if the witness cannot carry all his property at one time, normally, if the inmate asks for permission to do so, he will be allowed to go back and get the balance before the hearing. This is not in the procedure approved by DOC, however, nor in the IOP at UCI. Corrections Officer Howe is also aware of the fact that Mr. Adams had a hearing on August 26, 1985. He, in fact, was called to the movement center to escort several prisoners, including Adams, to the confinement barracks after the hearings. A part of this duty involves inventorying the prisoners property. Howe told Adams to get his property and bring it in for inventory. At this point, after the hearing Adams said he did not have all his property with him and asked to be taken back to his old cell to get the rest. Howe declined to do this and explained the security reasons for his decision to Adams. He did advise Adams, however, that he would call down to Adams' old cell area and have his property packed which, in fact, he did. It is standard practice at UCI, according to Howe, that if an inmate has a large amount of property, he can request the use of a cart or wheelbarrow which is assigned to each housing area for carrying this excess property. This cart will be returned by a runner who can also help carry the excess. To his knowledge, inmates are not denied the use of these carts. Howe declined to return Adams to his old cell area after the hearing because, at the time, Adams was belligerent and unstable and presented a security risk in his opinion and also, because Adams had previously been advised to bring all his property with him and had failed to do this even though there was a way for him to accomplish it.
The Issue Whether Respondent, a certified correctional officer and a certified instructor, committed the offenses alleged in the Administrative Complaint issued November 16, 2004, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer and as an instructor. At all times relevant to this proceeding, Respondent was employed by the Florida Department of Corrections (DOC) at its Indian River Correctional Institution (IRCI) with the rank of Major. At all times relevant to this proceeding, Ken Torres was employed by the DOC at IRCI with the rank of Lieutenant. On June 11, 2003, Tvaris Burch, Errol Whiley, and Keith Conley were inmates at IRCI. At no time did any of these three inmates have authorization to be in Respondent’s office at IRCI. The only door to Respondent’s office opens to a long hallway. This door is normally locked. At approximately 6:15 p.m. on June 11, 2003, Respondent entered his office at IRCI and was followed by Lt. Torres. Respondent and Lt. Torres saw three inmates on the floor attempting to hide under Respondent’s desk. Each inmate attempted to conceal his identity by pulling his tee shirt up over his head. It is undisputed that both Respondent and Lt. Torres ordered the three inmates to come out from under the desk and the inmates refused those orders. It is also undisputed that the inmates came out from under the desk after Respondent threatened to order Lt. Torres to spray them with chemical agents. What happened next is the center of the dispute in this proceeding. Petitioner alleged that Respondent kicked one of the inmates and that he kicked and punched another inmate as they came out from under his desk. Petitioner also alleged that Respondent failed to file a mandatory Use of Force Report and that he lied to an investigator (Mr. Glover) in a sworn statement. Respondent asserted that he did not kick or otherwise use unauthorized force against any of the three inmates, that he had no reason to file a use of force report, and that he did not lie to the investigator. In support of its allegations, Petitioner presented the testimony of inmate Burch, Mr. Glover, and Lt. Torres. In addition, Petitioner presented the investigative report prepared by Mr. Glover and certain affidavits gathered by Mr. Glover during the course of his investigation. The following facts are not in dispute. After the three inmates came out from under the desk and were on their feet, they were ordered to remove the tee shirts from their heads and were identified as being inmates Burch, Whiley, and Conley. They were stripped searched by Respondent and Lt. Torres and contraband was removed from them. Additional security was called and took the three inmates to the prison nurse for a pre-confinement physical. This type medical examination is mandatory for an inmate about to be confined for disciplinary purposes. The inmates did not complain to anyone that they had been injured or mistreated by Respondent or by anyone else. The nurses noted no injury on any of the inmates. The three inmates were then confined for disciplinary reasons. An incident report was written and a Disciplinary Report was filed for each of the three inmates. Neither Respondent nor Lt. Torres filed a Use of Force Report, which is a mandatory report after physical force is used against an inmate. On June 12, 2003, approximately 24 hours after the incident in Respondent’s office, both inmate Burch and inmate Whiley declared a medical emergency. Both inmates were promptly taken to the medial unit and examined by prison nurses. Inmate Burch told nurse Rhea Harris that he had been injured by being kicked in the head, but he would not identify the person who kicked him. At the final hearing, inmate Burch testified that Respondent kicked him in the head as he was coming out from under the desk and in the knee when he tried to stand up. He further testified that the blow to the knee caused him to fall to the floor, which broke his glasses. Ms. Harris observed a bump on the side of inmate Burch’s head that could be consistent with inmate Burch’s being kicked.5 Inmate Whiley was seen by Nurse Debra Barriner on June 11 and June 12, 2003. On June 12, 2003, inmate Whiley told Ms. Barriner that he had a sore neck and a sore area on his face on the left cheek. Ms. Barriner observed areas of slight swelling and discoloration that were consistent with inmate Whiley’s complaints. Inmate Whiley refused to tell the nurse what caused his neck and left cheek to become sore. In an affidavit subsequently secured by Mr. Glover, inmate Whiley alleged that Respondent had kicked him as he was coming out from under the desk and hit him in the stomach after he stood up. In an affidavit secured by Mr. Glover, inmate Conley stated that he was not struck by Respondent on June 11, 2003, but that he saw Respondent strike inmates Burch and Whiley. Approximately a week after the incident in Respondent’s office, corrections officers intercepted a note being passed from the cell of inmates Burch and Whiley to the cell of inmate Conley. This note was turned over to Lt. Torres, who was the shift supervisor, who testified that he threw the note away and could not recall its details. Lt. Torres did recall that the note made a reference to his being promoted as a result of the allegations that had been made against Respondent. In a sworn interview given to Mr. Glover, Lt. Torres stated that he saw Respondent kick inmates Burch and Whiley. He repeated that statement at the formal hearing. On closer examination, Lt. Torres testified that he did not witness Respondent make physical contact with any of the inmates, but that he saw him making kicking motions in the directions of the inmates. On further examination, the following exchange occurred between Petitioner’s counsel and Lt. Torres beginning at page 85, line 22 of the Transcript: Q. Let me ask you this: If you did not see Major Passino actually strike an inmate, why then did you feel that it was necessary to report such an incident.[6] A. Why did I feel that? That’s my responsibility. Q. At the time that this incident occurred, why did you consider that there had been a use of force. A. Why? Q. Yes. A. Only because of what the inmates said, that they were injured, did I suspect that there was a use of force. Q. And that was only after the inmates had declared a medical emergency – A. Yes, sir. Respondent’s testimony that he did not use unauthorized force against inmates Burch and Whiley is found to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove by clear and convincing evidence that Respondent battered inmate Burch or Whiley.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 24th day of, June, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2005.
Findings Of Fact Petitioners are inmates presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a prison facility maintained by the Florida Department of Corrections. The superintendent of Polk Correctional Institution issued a directive, which is dated February 18, 1982, and entitled "Interoffice Memorandum". The memorandum is directed to all inmates and relates to visiting procedures. It provides: Effective Saturday, March 6, 1982, inmates will no longer be permitted to receive visitors on both Saturday and Sunday of the same week. Visiting policy in the past has permitted inmates to receive visits on both Saturday and Sunday of the same week, but not from the same visitor. This change means that you must receive all your visitors on either Saturday or Sunday. If your (sic) receive a visit on Saturday, you will not be permitted to receive another visit on Sunday. This change in visiting procedure will help alleviate the overcrowded situation in the visitor's park and allow you and your family to visit together more comfortably. The memorandum applies only within Polk Correctional Institution. It was issued by the superintendent without any effort being made to promulgate it as a rule. No effort was made to publish notice, to give affected persons an opportunity to be heard, nor to conduct hearings and allow input from members of the public. The superintendent did not construe the memorandum as being a rule. He considered it authorized under the provisions of Section 945.21, Florida Statutes; Department of Corrections Rule 33-5.01, Florida Administrative Code; and Department of Corrections "Policy and Procedure Directive" Number 3.04.12, which was issued April 8, 1981. Rule 33-5.01 provides: The Secretary shall authorize each Superintendent to adopt policies stating the conditions and circumstances under which visits may be conducted including: the regular visiting hours of the insti- tution; the items which visitors may take in or out of an institution, and what items are contraband; what persons or groups may visit, and in what numbers; and the specific standards of conduct which shall prevail during such visits. All visiting policies promulgated by the Superintendents shall be subject to approval by the Secretary. Department of Corrections Policy and Procedure Directive 3.04.12 provides at Paragraph V.A. 1: Visiting days shall normally be designated as Saturday and Sunday between the hours of 9:00 a.m. and 3:00 p.m. Where unusual circum- stances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or when facilities permit, visiting may be permitted more than one day. The directive provides at Paragraph V.B.: There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation when physical facilities are restrictive. However, reasonableness should be exercised when possible in regard to the number of visitors that would be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant dis- tance, especially when such visits are on an infrequent basis. This policy directive has not been promulgated as a rule. It is not published in the Florida Administrative Code, does not bear a numerical designation that accords with rules of the Department of State, and appears to have been adopted on authority of Department of Corrections Rules 33-4.02(), 33-3.06, and 33-5, Florida Administrative Code. None of these rules sets out visiting conditions with the specificity found in the policy and procedure directive. Prior to the March 6, 1982 effective date of the Superintendent's memorandum, which is the basis for this proceeding, inmates at Polk Correctional Institution were allowed to receive visitors on both Saturday and Sunday. This prior policy was based upon memoranda that had been issued by the superintendent in the same manner as the February 18, 1982 memorandum.
Findings Of Fact Petitioner, Donald Eugene Halpin, has been an inmate at DeSoto Correctional Institution since February, 1991. He is serving a sentence to life in prison. Sometime in March, 1991 he received a letter from a female friend through the prison mail system. Enclosed with the letter were several photographs of this female friend who was in the nude. They were of the sender only and did not show either her sexual organs or any sexual activity. She had sent him similar photos while he was confined at Marion Correctional Institute and he has received others over the past 16 years he has been incarcerated in one or another institution within the Department system. At all other institutions where he has been held, he was permitted to retain these or similar photographs. At DeSoto he was not. The photographs were never given to the Petitioner by the DeSoto officials but were returned to the sender. This action was justified to him by Institution officials on the basis that other inmates could get into his locker where the photos would be kept and this could result in difficulty or disagreement between or among the inmates. The denial was justified on the language contained on the back of the institutions mail form which reads: Mail containing obscene items, language, or references made in a suggestive manner (which would not be acceptable from a moral standpoint) shall not be permitted. Mail received which does not comply with regulations shall be returned to the sender. The Department's rule in issue has been in effect for a considerable time and has system-wide application. The current Assistant Superintendent at DeSoto, Mr. Cornell, uses it at the facility about 4 -5 times a month. It is justified under the rationale that nude photographs of an inmate's family member are dangerous to have. Inmate living areas are not air-conditioned and when temperatures are high, tempers often flare. Even though most inmates claim there is no animosity among them, such feelings exist, especially if the subject of this type of photograph comes to visit. In prison especially, lewd or derogatory comments about an inmate's family are not well tolerated and may result in an altercation. Mr. Cornell can remember one case in which it did, and he feels this constitutes a risk to the security of the institution. DeSoto's assault rate is lower than that of other close security installations because, he believes, of this rule and how it is applied. Magazines containing photographs of a similar nature are allowed as a part of the approved reading for inmates in Department facilities. Such magazines as Oui, Penthouse, Playboy, and Playgirl Magazine are contained on the approved periodical list attached to and made of part of the Department's Policy and Procedure Directive 4.10.50 dealing with admissible reading material, issued on May 10, 1979 and revised on May 25, 1982. These magazines are justified on the basis that the photo subjects are not known to or related to inmates, and the photographs may not be cut out of the magazines and posted in inmate living areas. Consequently, it is felt, these magazines pose no threat. The pictures allowed to inmates do not have to be of individuals on the inmate's visiting list. The test of whether a photo will be approved is not the subject of the photo but the nature of the pose. When mail for inmates is received at the institution, it is reviewed by several people in the chain of command overseeing the particular inmate. A Corrections Officer I is the mail room person who first opens the inmate mail. It is then screened by a Sergeant and a Lieutenant as well as the Major in charge of each of the institution's major units. Another inmate, Henry Ross, received nude photos of family members and girlfriends which were confiscated. When he filed a grievance, the pictures were returned to him but he was advised he would not be allowed any more. Mr. Cornell indicated he was not aware of those photos but, having viewed them at the hearing, would have denied them entrance if he had. Parenthetically, the day of this hearing, after Ross had testified on behalf of Petitioner and had shown his photos to the Hearing Officer, he was called in and advised a ruling had been made that his photos were not proper and he was required to get rid of them. He has also, however, received other photos of this type over the nine years he has been incarcerated and has been allowed to keep them. He has also had access to the magazines described above. Inmate Jackson, who has been at prisons in the Department system for more than 14 years, has not received any nude photos from outside but personally knows of inmates who have while at other institutions. In all his years of incarceration, he has no knowledge of any violence among inmates as a result of nude photos even though lockers have been broken into. Jackson claims that neither he nor Ross would ever engage in violence as a result of a derogatory remark regarding any pictures they might have nor would they take such action if their lockers were broken into. The inmates see DeSoto's implementation of the rule as arbitrary and unjustified. In this case, when Halpin's pictures were returned without being given to him, he first filed an informal grievance which was denied. He then filed a formal grievance which was also denied, and an appeal of that denial to the Department Secretary who denied it as well.
Findings Of Fact Petitioners are all inmates at the Florida State Prison (FSP) and are subject to the terms of DOC Rule 33- 3.04(9), which requires that the return address of all outgoing mail must contain the inmate's name, identification number and institutional name and address with abbreviations. Petitioner Herzog, in March, 1985 failed to receive directly a letter sent to him from a correspondent in Beacon, N.Y., which was addressed to "Mr. Frederick Herzog, 081003, P. 0. Box 747, Starke, Florida 32091" because, as is indicated by stamp on the front of the envelope, the inmate's number and cell location must be included in the address. As will be seen below from the testimony of Ms. Seally, an inmate's cell number is no longer required. On two other occasions Mr. Herzog attempted to send letters to Beacon, N.Y., utilizing envelopes which reflected his return address merely as P. O. Box 747, Starke, Florida, 32091. These letters were not put into U.S. mail channels by prison mail room personnel because of the failure to reflect the institution's name and address in the return address. Petitioner Abdul Hakgem Jahmal N. Shabazz, also known as Owen D. Denson, on at least two occasions attempted to send letters to various individuals, one in Ft. Pierce, Florida, and one in Nokomosis, Florida, in envelopes bearing the return address, Post Office Box 747, A-013625, either Florida State Prison, Starke, Florida or merely Starke, Florida without identification of the prison. Both were returned to him for failure to have the institution's full name in the return address. Allen Penoyer, representative for Petitioners herein, was denied receipt of mail sent to him which included nude photographs. Neither Petitioner Milton nor Mummakil testified at the hearing or presented any evidence in their behalf. According to Mr. Dugger, Superintendent of FSP, the full identification without abbreviation of the prison name is required in inmate return addresses because of experience in the past which has indicated that inmates often misrepresent their location in correspondence to outsiders which sometimes results in extorting or gaining by fraud, money or other favors. The inclusion of the full prison return address would, it was hoped, give the outside addressees information as to where the letters originate. In one instance, a woman sent an inmate correspondent $10,000.00. The checks were intercepted and when questioned by prison officials, the woman indicated that from the mail she had received, she had no knowledge or indication that she was sending money to an inmate. Another reason for the rule was that some prisoners were subscribing to stock market publications and other periodicals and not paying for them when billed. Without the full return address, the publisher had no idea its publication was coming to a prison. In several instances, the publishers contacted prison officials requesting something be done about the situation. Mr. Dugger further indicated that some correspondents, even those who know an inmate is incarcerated, think the facility is a jail rather than the state prison and that the inmate's sentence is shorter than it actually is. Some correspondents have even shown up on a misrepresented discharge date expecting to see an inmate to whom they have sent money when in reality, the discharge date has been far in the future. Brenda Sealey, the supervisor of the mail room at FSP insures all mail comes in and goes out in proper fashion and that DOC rules for mail are followed. At one point, prison officials interpreted the rule which requires complete address to include the cell number but this policy is no longer followed. Currently, mail will be delivered to prisoners if mail room personnel can in any way find the prisoner somewhere within the DOC. Even though the rule requires an inmate number as a part of the address, as a courtesy, mail room personnel will deliver mail that does not contain this if they can find the prisoner. They will send the mail to another institution if the inmate has been moved. The rule requiring the use of the complete, unabbreviated name of the institution is still being implemented and applies to all routine mail but not to legal mail. Christmas cards, graduation and birthday cards, and the like are all routine mail and must have full return address. Identified legal mail is not held up because of technicalities.
The Issue Whether Union Correctional Institution Operating Procedure No. 81-6, concerning inmate canteen coupon books, is an "unpromulgated rule" within the meaning of Section 120.52(15), Florida Statutes, rendering it an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioners are prisoners Incarcerated at Union Correctional Institution, a prison operated by the Department the agency responsible for the state prison system. The parties stipulated that petitioners are Substantially affected by the challenged Union Correctional Institution Operating Procedure No. 81-6. Petitioners, who initially challenged several operating procedures and directives, have confined their attack to Union Correctional Institution Operating Procedure No. 81-6. This Operating Procedure, issued February 16, 1962, and revised October 2, 1981, Is titled "Inmate Canteen Coupon Books" and issued over the signature of the Superintendent of Union Correctional Institution. As authority for its issuance, two policy and procedural directives are referenced, neither of which is in evidence. The stated purpose of this Operating Procedure is: To establish the approved medium of exchange for inmates assigned to Union Correctional Institution; To establish procedures for obtaining coupon books for use in the Canteen System; To place responsibility for distributing and accounting for Canteen coupons; To place limitations upon inmates use of coupon books; To establish procedures for redemption of coupon books; and To identify disciplinary action relative to misuse of coupon books. (Petitioners' Exhibit No. 1) Paragraph 81-6.3A expresses the main policy of the Operating Procedure: A. Canteen coupon books shall be the approved medium of exchange for inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an inmate are contraband. (Petitioners' Exhibit No. 1) This Operating Procedure announces and purports to set Department policy for Union Correctional Institution. Canteen coupon books are declared to be the only approved medium of exchange for inmates. Currency, coins or other negotiable instruments in the possession of inmates are declared contraband. All currency, coins or negotiable instruments are removed from new inmates and credited to their individual trust accounts. Thereafter, inmates may draw up to $20.00 per week from their trust accounts, but only in the form of coupon books. Coupons may be redeemed in the canteen system but loose coupons will not be accepted. Inmates may not possess more than $25.00 worth of coupons--any excess is declared contraband. This Operating procedure also includes details regarding coupon books, coupon distribution, and coupon redemption. Finally, inmates are warned that failure to comply with the Operating Procedure may constitute a violation of institutional rules for which, presumably, sanctions may be imposed. (Petitioners' Exhibit No. 1) This written Operating Procedure applies to all inmates at Union Correctional Institution. It applies prospectively, and dictates the medium of exchange for inmates at the institution. It purports, in and of itself, to create rights and affect others; it is virtually self-executing, no exceptions or discretion in implementation is allowed. By its tone and language, it speaks with the force of a rule of law. The Department concedes that this operating procedure has never been adopted as a rule in accordance with the rulemaking procedures of Section 120.54, Florida Statutes.
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.
