Findings Of Fact Petitioners, Douglas Lavern Adams, Edwin Paul, Stanley Blanding, Carl B. Cribbs, Efron Yero, and James M. Cook are all incarcerated in the State of Florida at Respondent's facility, the Union Correctional Institution located at Raiford, Florida. On November 15, 1984, the Department of Corrections forwarded to the Bureau of the Administrative Code for publishing in the next available issue of the Florida Administrative Weekly, its proposed Rule 33-5. The proposed rule in question was published in Volume 10, No. 46 on November 21, 1984. The stated purpose and effect of the proposed rule was to clarify and revise policies and procedures relating to visitation with inmates. The proposed rule purported to make certain changes to pre-existing Rule 33-5 as outlined in the proposal which, among other things, allowed superintendents to make exceptions to any provision of this rule on an individual case by case basis, based on the best interests of the inmate, the security and welfare of the department, or both with the qualification that the exception could not be more restrictive than the provisions of the rules and with the further requirement that all visiting policies promulgated by the superintendent shall be subject to approval by the Secretary of the department. Petitioners contend that the proposed changes severely limit their prior existing visiting rights. Specifically, Petitioners' contentions include: Rule 33-5.01 is without legislative authority in that the Secretary has no authority from the legislature to delegate policy making authority to superintendents; Rule 33-5.04 is an invalid rule for the same reason and because it deprives hospital inmates of family visits in an arbitrary and capricious manner, without a valid penological objective, and in violation of both equal protection clauses of the State and Federal Constitutions and is fatally vague and invalid in that by stating, "any other special status" it fails to specify what status prisoners will be prohibited from visitation; Rule 33-5.07(5) constitutes an invalid delegation of legislative authority to an employee; Rule 33-5.08(2) is arbitrary, capricious, and without any known penological objective, constitutes an abuse of discretion, and is unreasonable in that it is without a rational basis for the potential reduction of visiting days; Rule 33-5.08(3) is discriminatory on its face, is fatally vague, and insufficient in specificity to inform Petitioners what circumstances will be considered; Rule 33-5.08(4) is without a rational basis in fact and is fatally vague; Rule 33-5.10(c) is an unconstitutional rule in that by authorizing unwarranted searches and invasions of privacy of visitors, this would discourage visitation and thereby deprive Petitioners of visits; Rule 33-5.08(12)(c) is fatally vague and overbroad and discriminates against female visitors in an arbitrary and capricious manner by permitting their exclusion if they are "not appropriately clothed or are dressed in revealing attire . . . and other like attire"; Rule 33-5.08(14) and (15) constitute an abuse of discretion and are discriminatory in an arbitrary and capricious manner in that they refer without defining or explaining "security" reasons for allowing non-contact visits; (j) Rule 33-5.04 and 33-5.08(2) render the proposed rule ambiguous and vague because prisoners will not be able to ascertain if they are entitled to visits and the rules cannot be uniformly applied on a just and rational basis; (k) that Respondent has failed to provide adequate notice of the proposed rule to those inmates in administrative, disciplinary, and close management status. The proposed changes to the rules came about after Respondent conducted a survey of the existing visitation policies of all institutions within its system. This review indicated a need for a statewide set of standards for visitations while at the same time allowing the superintendents of the various institutions the flexibility to tailor standards at the individual institutions to local needs and the special needs of the inmates. The survey showed a need for some flexibility within the rules to accommodate the uniqueness of the individual facilities and the special needs inherent therein while at the same time addressing the overall needs constant throughout the system such as security, inmate health and welfare, and safety of both staff and inmate population. Primary among the concerns considered by the Department was the security aspect. The need to control contraband and to maintain order and discipline within the confines of any given facility is obvious. Without question a valid concern of the staff is the ability to control who and what goes into the facility. The superintendent has the inherent power to interdict the introduction of drugs, alcohol, weapons and similar contraband into a facility. He or she also has the responsibility to insure against the potential for disturbance caused by obviously inappropriate clothing worn by staff visitors to a sexually segregated institution. James M. Cook is an inmate at the Union Correctional Institution who has received special visits of the type to be governed under proposed Rule 33- 5.04 in the past. On those occasions he had to establish for his proposed visitor the classification the visitor would fall under, such as distance from the facility travel led or other criteria. In his opinion the proposed rule is somewhat vague. He contends it does not give specifics as to mileage, clothing to be worn, etc., in detail adequate for the proposed visitor to know what is required. He understands from a conversation with his classification officer that the distance requirement to be applied under the new rule is 400 miles but this criteria is not specifically stated in the proposed rule nor can it be determined from reading the rule. As to female visitors, he contends that that portion of the proposed rule which provides for appropriate clothing is insufficient in detail to insure the visitors will be properly dressed for the visit. It has been his experience in the past that if a female visitor is improperly dressed, as determined by the institution's personnel, the guards require her to wear a shapeless smock. Under the terms of the new rule, Cook said, he is required to inform his visitor what can and cannot be worn, but because the rule is devoid of detail, it is difficult for him to do this. Proposed Rule 33-5.06(3) does not, as Cook asserts, require the inmate to inform the visitor in detail of the particulars of the visiting program only the basics, such as hours, days, and, to be sure, the need for non-provocative apparel. The question on the distance requirements for special visits is also of concern to inmate Cribbs whose mother lives in Tampa, a 350 mile round trip from this facility. Cribbs contends the proposed-rule has no specifics in it as to mileage for special visitors. In the past, his mother, coming from Tampa, has been able to visit on both Saturday and Sunday and because of the distance, has made a two day visit out of the trip. The new rule, according to Cribbs, leaves everything up to the superintendent regarding visiting privileges and depending upon the determination of that officer, his mother may be forced to come this long distance to see him only on one day of the weekend. Under the current policy, inmates are allowed visitors on both Saturday and Sunday and the new rule, he feels, will change this benefit to allow visits normally only once per weekend. Cribbs is also concerned about the dress requirements of the new rule. He is concerned with the term "like attire" which he feels makes it difficult for him to tell his female visitors what to wear. Petitioner, Stanley Blending, has also had visitors on both days of the weekend in the past. He had a need for this benefit because his grandmother came from Canada for a visit once a year and, in addition, his son comes up to visit from time to time and the two day visit is required for him to talk with the young man regarding family problems. At UCI he currently gets two days of visits and, in his opinion, these two day visits have had a beneficial, rehabilitative effect. As in the case of Cribbs, Blanding's family comes from Tampa and that distance makes it necessary for them to have a two day visit. He is concerned and believes that the proposed rule will limit visits to one day per weekend which, in his opinion, would severely limit the amount of visitation he would receive. He is also concerned, about the proposed rule regarding appropriate dress for female visitors. The proposed rule says nothing about the institution providing a smock for inappropriately dressed females as has been done in the past. Combining the two changes, if his visits were reduced to one day or his female visitors were barred because of "improper" clothing, either situation would have an adverse effect on him. The current rule does not provide what is appropriate clothing and under the terms of the new rule, he would have a difficult time explaining to his female visitors what "appropriate" clothing is. Inmate Yero was in disciplinary confinement in December, 1984 and then placed under investigation. While he was in that status from October 26, 1984 through early January, 1985, he did not get to see nor did he ever receive notice of the proposed rule. Prior to October, 1984, he was allowed visitors from one to two hours. This was the rule for prisoner in disciplinary confinement. The new rule would allow the superintendent to restrict visitors to prisoners in Yero's status. The new rule adds the word "infirmaries" to the list of special status inmates. He signed the Petition herein with only limited knowledge of its contents. Inmate Paul is presently a hospital inmate and has been intermittently since 1982. He is housed in the hospital because of a disability which confines him to a wheel chair not because of any contagious or infectious disease. He understands the new rule to state that since he is in the hospital, he could be denied visitors even though he is not a patient but a special housing prisoner who is considered to be a regular inmate. He was advised that when his sister from New York called to arrange a visit with him, she was told that because he was in the hospital, he could have only a one hour visit with her. The new rule could prohibit him from having visitors at all, he says, and leaves too much discretion with the superintendent. The one hour rule which applies to inmates in the hospital has had an adverse effect on him since he has been deprived of visits from his sister. He and his sister are orphans, he says, who have just been recently reunited after a long separation. He contends that the new rule puts too much control in the hands of the superintendent. It is too vague and gives the superintendent authorization to make decisions which he should not have. The propriety of placing control, the right to make decisions, and discretion in the hands of the superintendent is clear. Without question, the superintendent is the individual most qualified to make those decisions and to exercise those functions. Adams' mother is old. Because of this and because she cannot walk far, the past changes in parking and entry procedures have cut down on her visits to him. Because of this, he is not likely to be affected by the potential for a change to one day visits. However, as to the dress rule, he would have difficulty in telling his family what they could or could not wear based on the descriptions or lack thereof in the proposed rule. During the four years he has been in confinement, he has found it difficult to know or determine who is going to do what at any given time. His mother has told him that she would like to visit him but doesn't want to go through all the difficulties she has to encounter when she does visit. She states to him that the metal in her bra sets off the metal detector utilized to screen visitors and as a result, she wears a tank top on her visits which would be prohibited by the new rules. He considers this to be deleterious to him and his welfare and he contends that the new rule will destroy any uniformity among the 79 or so different facilities within the DOC. There is no evidence that the sole alternative to a metal braced bra is a tank top. Numerous other modes of dress are available to women of all ages, sizes, and shapes. According to Harry Singletary, Assistant Secretary of the Department of Corrections, the Department is presently reviewing all rules and policy and procedure directives in an effort to do away with the latter and make all controlling directives for the Department in the form of Rules. The intent is to promulgate standards for statewide application to meet the needs of the families of the inmates, the inmates, and the institutions. Mr. Singletary contends that the majority of changes set out in the proposed rules make them more liberal for the inmate or increase security for the institution. Both of these goals are worthy and supportable. It was the intent of the drafters of the rule to standardize procedures so that visitation would be made easier and safer and to increase uniformity among the institutions so that prisoners moving from one institution to another could know what to expect. It is the Department's position that a rule should not create surprises for the inmates and should liberalize and simplify procedures for them as much as possible. As to proposed Rule 33-5.01, the reason for the new language was to give the Superintendent the discretion to provide more visitation for the inmates and their families and to deal with special needs of the inmates or the institution. The change here is to liberalize - not penalize. The terms of the proposed rule provide that Superintendents' interpretations cannot be more strict than the terms of the rule and it in essence legitimizes superintendents being more liberal than the rule calls for. Based on the population and size of the UCI visitor park, notwithstanding the concerns of Mr. Adams that the Legislature and recent court decisions will have the effect of significantly reducing the population at UCI, there should he no change in visitor policy as it exists now at this institution. As a matter of fact, if the population decreases, there would be less pressure or reason to reduce the visit days for each inmate to make more time available for others. The fact that some language is less than specific (i.e., 6 hours instead of 9 am to 3 pm) reflects an intention on the part of the drafters to give the superintendent latitude to tailor local policy to the needs of the inmates and his institution. It is recognized that there may be some abuses by superintendents, but if this should occur, it would be the exception rather than the rule and there are adequate remedies existing in the DOC rules through grievance procedures to rectify any such abuse. With regard to proposed Rule 33-5.04, dealing with special status inmates, the change here proposed adds only the word "infirmaries." The existing rule was changed only to describe all types of facilities. The rule originally was designed to prevent the spread of disease incident to the closeness of prison populations. However, it is Mr. Singletary's confirmed opinion that ambulatory or non-infectious patient- inmates, such as Mr. Paul, one of the Petitioners here, would be allowed visitors in the visitor park the same as any other inmate, on regular hours. Proposed Rule 33-5.07(5) is a new offering which gives the Superintendent authority to act to promote discipline but provides adequate safeguards to prevent abuse. Proposed Rule 33- 5.08(3) is also new and it gives the inmates the opportunity to tell the superintendent what they need and provides for extra visiting time when justified. It also gives specific factors that inmates are to use to justify extra visiting time. It was intended to promote uniformity. Proposed Rule 33-5.08(10) dealing with searches, is designed to provide for a method to prevent the introduction of contraband into the institution. It is for the security of the institution and if reasonable, should provide no problems. There are presently no dress codes applicable to visitors coming into UCI or any other institution. Proposed Rule 33- 5.08(1)(c) applies to both men and women and is based on the need for security in the institution. The intent of the agency was to limit the opportunity for rude, suggestive, or untoward comments by inmates which could give offense to the resident inmate relative of the visitor to whom the comments are directed and which could incite fights or other violence. Proposed Rules 33-5.08(14) and (15) both exist in the present rule. Subparagraph 14 deals with people in protective custody and death row inmates as well as violent inmates. Subparagraph 15 deals with those instances where contact visits might jeopardize security. Those inmates in normal status would not be separated. The rules are based on the need to maintain security and prevent the passing of weapons, the spread of disease, or inappropriate conduct as is periodically demonstrated by inmates and visitors. The machinery designed by the agency to deal with those instances envisioned by the rule where a Superintendent of a particular institution might want to impose a standard stricter than that encompassed in the rule, requires that superintendent to submit his proposal to the Secretary of DOC along with justification and documentation indicating a need for a stricter standard. It is also envisioned that prisoners requesting a transfer from one institution to another write in advance to the new institution to get the local policy regarding a particular area or, wait to be briefed as to local policy during the incoming orientation on arrival. Just as the institutional superintendent must justify imposing a stricter standard than called for in the rule, it is, as well, the responsibility of the inmate who request extra visiting time, to present factors justifying the extension, the grant or denial of which is within the prerogative of the superintendent. Admittedly, while the rule does not define specific criteria for the superintendent to use in making his decision, it will be based on the reasonableness of the request and the sufficiency of the reasons submitted by the inmate. In short, the inmate must make his case and is not limited as to the factors he may use to show the need for extra time or for the change in location. The decision is within the discretion of the superintendent and is similar to other areas such as release, privileges, and the like in which the superintendent has been held capable of legitimately utilizing his discretion.
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 In 1977, Dr. Reavis applied for licensure as a medical doctor in Florida by endorsement pursuant to Section 458.051, [now Section 458.313(3)], Florida Statutes. Dr. Reavis was licensed in January 1978 by the Board. Dr. Reavis moved to Lakeland, Florida in 1978, where he has practiced medicine continuously since that time. The Board without actual notice to Dr. Reavis entered a Final Order on February 5, 1981, which purported to declare null and void the license of Dr. Reavis to practice medicine in Florida. Dr. Reavis became aware of the Board's action in 1984 when he sought to renew his license. Dr. Reavis immediately took steps to have the Board's order of February 5, 1981, rescinded. The Board reinstated the license of Dr. Reavis on February 15, 1984, but concurrently gave notice of its intent to reprimand Dr. Reavis for violation of Rule 21M-22.17, Florida Administrative Code. Rule 21M-22.17, Florida Administrative Code was enacted on December 12, 1983. Rule 21M-22.17, Florida Administrative Code, requires a doctor licensed by endorsement to present evidence to the Board of actually practicing in Florida. It is this provision of the rule which the Board alleges Dr. Reavis violated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Medical Examiners dismiss forthwith the Notice of Intent to Reprimand, and take no penal action against the Respondent, Dr. Wilton Reavis. DONE and ORDERED this 22nd day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN 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 22nd day of January, 1985. COPIES FURNISHED: Susan Tully, Assistant Attorney General Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32301 Thomas L. Clarke, Jr., Esquire P.O. Drawer J Lakeland, Florida 33802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner Walter C. Fitzgibbon is a permanent state career service employee who became a Planner and Evaluator II with the Division of Corrections, Department of Health and Rehabilitative Services, on February 14, 1975. He had been serving in that department in other capacities since 1969. In July of 1975, the Department of Offender Rehabilitation (DOR) was created that took over the functions of the Division of Corrections, and Petitioner retained his position which was placed in the Bureau of Planning, Research and Statistics headed by Robert Roesch. The Bureau is under the supervision of the Assistant Secretary for Programs, T. P. Jones. (Testimony of Ball, Waiwright, Jones, Fitzgibbon, Exhibits 15, 29) In July, 1977, there were four Planner and Evaluator II positions in the Department of Offender Rehabilitation. Three of these positions were under the Bureau of Planning, Research and Statistics and the incumbents performed basically similar duties that primarily consisted of long-range planning to meet departmental goals and objectives. The employees holding these positions were Petitioner, Sunil Nath, and Bill C. Schnitzer. The fourth Planner and Evaluator II position in the department was under the Assistant Secretary for Programs in the Adult Services Program office headed by Director Ronald B. Jones. The incumbent of this position serves as Mutual Participation Program Coordinator, (MPP Coordinator), a position that was established by the Mutual Participation Program Act of 1976 (Section 847.135, F.S.), and which involves the planning, developing, coordinating and implementing of a two-year pilot program of contracts between the DOR, the Florida Parole and Probation Commission (Commission) and incarcerated criminal offenders with a view to early release from correctional institutions under parole supervision. Although the DOR originally had requested the Department of Administration to establish this position in a separate class because of its special characteristics, the request was not approved and the coordinator position was placed in the classification of Planner and Evaluator II. A position description for the job was approved on July 21, 1976, and applications for the vacancy were solicited in a DOR advertisement letter of July 27, 1976. This advertisement showed the minimum training and experience requirements for a Planner and Evaluator II, but did not mention the specialized requirements set forth in the position description. Edward M. Teuton, an Inmate Classification Supervisor at Sumter Correctional Institution, was invited to apply for the job by Assistant Secretary Jones who had known Teuton when the latter was an Inmate Classification Specialist at the Florida Correctional Institution where Jones had been the superintendent some years prior to that time. Teuton thereafter was selected to fill the vacancy in September, 1976. (Testimony of Ball, T. Jones, Teuton, Exhibit 2, Composite Exhibit 9) The 1977 State Legislature took action called a "productivity adjustment" which, along with termination of certain federal grants, resulted in the deletion of 149 positions in the DOR. Although officials of the department had become aware of the probable employee cutbacks as early as May, 1977, the law effecting the cuts did not become effective until late June, and it was not until the latter part of July that the department determined the specific employee positions that would be abolished. By letter of July 26 to the Secretary of Administration, Mr. Louie L. Wainwright, Secretary of DOR, requested approval of a statewide competitive area for the deletion of certain positions, including the three Planner and Evaluator II positions in the Bureau of Planning, Research and Statistics. In this letter, he stated that "Any layoffs necessitated by position deletions will be accomplished through application of retention points as specified by the State Personnel Rules." On July 27, the Secretary of Administration approved the request. (Testimony of Ball, T. Jones, Exhibits 1, 3, 4) On July 28, 1977, DOR Personnel Officer James A. Ball, III, held a meeting at which he advised the four Planners and Evaluators of the situation and indicated that three of the positions were to be abolished. "Retention points" under the layoff rule, Rule 22A-7.11, F.A.C., had been computed by his office and Petitioner had 120 points which was the highest of the four employees. Nath had 85 points, Teuton had 83, and Schnitzer had 68. Accordingly, Ball told Petitioner that he would not be adversely affected by the cutbacks since he had the most retention points, and that, after the meeting, he should get acquainted with Teuton and the duties of his position. The other three employees were requested to remain in order to discuss the implications of their impending layoffs. Petitioner proceeded to confer with Teuton thereafter, and "phase-in" to the new position by orienting himself in his anticipated new duties and responsibilities. However, he continued to perform his normal duty assignment and no official change in position was made. (Testimony of Ball, T. Jones, Fitzgibbon, Teuton, Exhibits 10, 11, 26) In early August, Ball briefed Secretary Wainwright and his chief assistants on the situation and advised them that Fitzgibbon would succeed to the remaining Planner and Evaluator II position then held by Teuton because he had the most retention points. The Secretary was concerned because it was a pilot program scheduled for only a two year existence and had been in successful operation for one of those two years under Teuton. He felt that there was insufficient time to train someone to take over the program because of its short duration and the necessity of reporting to the legislature on its progress. He therefore sought the advice of the State Personnel Director and the latter recommended that he consider the possibility of utilizing the concept of "selective competition" to fill the position. This is a process permitted under the layoff rule when authorized by the State Personnel Director that permits a state agency to avoid the "bumping" procedures by which employees holding the most retention points within a competitive area when layoffs are to be effected may obtain any remaining vacant positions. In selective competition, unwritten Department of Administration policy is that only those employees who meet the specific qualifications deemed necessary for the position which are clearly reflected in the position description may compete for the job. If several employees meet these special qualifications, then the one with the highest retention points is appointed. (Testimony of Ball, Wainwright, Dean) By letter dated August 31, 1977, Secretary Wainwright requested the State Personnel Director to approve selective competition for the coordinator position "among persons who may be affected by layoff in the Department of Offender Rehabilitation." The position was therein described as unique, and requiring specific qualifications to perform the duties reflected in the position description. These qualifications were that the incumbent must have a thorough knowledge of the statute governing the program, possess extensive inmate classification experience to train institutional classification personnel in negotiating contract paroles and monitoring and evaluating the program. Additionally, institutional experience in dealing with inmates was said to be necessary in order to be successful in the position, plus a thorough knowledge of structured treatment programs at each DOR rehabilitation facility. The Deputy State Personnel Director reviewed the request in the light of the position description and determined that selective competition was appropriate. Based on his recommendation, the State Personnel Director approved the request by letter of September 8, 1977. (Testimony of Ball, Dean, Wainwright, Exhibits 5, 6) Based on recommendations from Assistant Secretary Jones, personnel officer Ball, and Ronald Jones, the program director, Secretary Wainwright determined that Teuton was the only Planner and Evaluator II who possessed the special qualifications for the position. He therefore informed Teuton by a letter, dated September 14, 1977, that since he was "best qualified" for the position, he would remain in that capacity and that the notice of layoff sent to him on August 5 could be disregarded. The process of selective competition had not been publicized or otherwise made known to Fitzgibbon. In arriving at his decision, Secretary Wainwright had reviewed the qualifications of all four employees. (Testimony of Ball, Wainwright, T. Jones, Exhibit 13) On September 13, Fitzgibbon met with Ball and Assistant Secretary Jones at which time the latter informed him that he would not receive the coordinator position. At this time, he was provided with a copy of a letter signed by Wainwright, dated September 14, 1977, advising him of his impending layoff and his rights in that regard. At the meeting, Jones explained to Fitzgibbon that he could take a voluntary demotion if he so desired and that he would be provided with assistance in finding another job. Fitzgibbon received the official notice of layoff letter on September 19th. The letter informed him that he had the right in lieu of layoff to request demotion or reassignment within the competitive area to a position for which he might be eligible. In this letter, he was also advised that he was subject to layoff because of the deletion of his position and because of "your lack of either permanent status or sufficient retention points in your class of position and competitive area." He was further advised of his right to appeal the layoff to the Career Service Commission within twenty days. On September 30, 1977, Fitzgibbon appealed the layoff to the State Personnel Director claiming that the DOR had made "unfair and unjust use" of Rule 22A-7.11 by "questionable procedures" in the obtainment of selective competition for the remaining Planner and Evaluator II position. Also, by letter of September 23 to the Bureau of Personnel of the DOR, Fitzgibbon recited the events leading to his receipt of the layoff letter and requested demotion or reassignment in lieu of layoff "solely to comply with the personnel rules related to layoff and to retain my employment with the state and this department." He further stated that he retained his right to appeal to the Career Service Commission. Secretary Wainwright responded by letter of November 22, in which he informed Fitzgibbon that his "voluntary demotion" to Planner and Evaluator I would become effective on December 18. Fitzgibbon was, in fact, demoted to that grade on the stated date. (Testimony of Ball, Fitzgibbon, Exhibits 7-8, 14) The Mutual Participation Program which commenced in October, 1976, is operational in eight major correctional institutions in Florida. It involves the negotiation of contracts which specify certain undertakings by inmates during institutional confinement, a guaranteed parole date, the terms of parole supervision, and release from parole. The contractual parties are the DOR, the Parole and Probation Commission and the inmate concerned. Also termed "contract parole," it is an innovative system designed to provide an inmate with an opportunity to become involved in the decision-making process concerning his future and to set clearly defined requirements for obtaining a guaranteed parole release date. Such requirements may consist of academic and vocational programs, special counseling, restitution, pre-parole work release, and behavioral objectives. Each successfully negotiated contract is individualized in the above respects to fit the needs of the particular inmate. The procedure employed in negotiating a contract is for the inmate to prepare an initial proposal for consideration by a negotiating team composed of representatives of the DOR and the Commission. These representatives consist of an Inmate Classification Specialist of the DOR and a Contract Parole Specialist of the Commission, located at the correctional institution. If all three parties agree to the terms of the contract, it is sent to the Superintendent of the institution who may approve or deny the proposal. If he approves, it is then submitted to the Commission for final approval. It is the inmate's responsibility to fulfill the terms of the contract in a satisfactory manner. The institution must provide the services agreed to in the contract and the Commission must honor the established parole date if the inmate meets the contractual provisions. The MPP Coordinator, aside from initial duties in planning and establishing procedures for the pilot program and training individuals involved in the negotiating process, acts as a coordinator between the three parties to the contract to inform all concerned of the offender's performance of conditions and activities necessary to achieve release on parole. He must be well-versed in the current operations of the correctional system and be an efficient and diplomatic administrator, with less emphasis on planning, research and evaluation. The position is considered "crucial" and "sensitive" by the DOR. Although conflicting evidence was presented at the hearing, the weight of the evidence shows that the following special qualifications must be possessed by the incumbent of the position in order to perform the job in a satisfactory manner. He must have had prior experience in correctional institutions and be familiar with institutional programs. It is of critical importance that the coordinator have expertise in dealing with inmates to ensure that they are placed in appropriate programs tailored to their particular needs based on their background, educational psychological tests and the like. This aspect also requires an intimate knowledge of the functions of Inmate Classification Specialists and Supervisors because these are the institutional personnel who are concerned with the negotiating process. Further, since the contract parole system is premised upon successful accomplishment of goals while in the institution, there is less importance ascribed to the activities of the inmate while on parole. While the coordinator must monitor and evaluate inmate progress in fulfilling the terms of his contract and must provide input for periodic evaluations of the entire program, necessary research and reports based on statistics and other information gleaned from past experience is provided by the DOR's Bureau of Planning, Research and Statistics. The duties and responsibilities requiring the above qualifications are reflected in the position description for the MPP Coordinator. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Mills, Fouty, Terrisi, Teuton, Nath, Exhibits 5, 9, 12, 16- 20) Although Fitzgibbon possesses extensive background and experience in planning and administering institutional programs for mentally and physically handicapped individuals, he has had no experience in correctional institutions dealing with classification of inmates and institutional programs. On the other hand, Teuton had served several years as an Inmate Classification Specialist and Supervisor at various Florida correctional institutions. It was determined therefore by Secretary Wainwright, as well as by Ball and the Messrs. Jones, that Fitzgibbon lacked the basic qualifications for the position. It was further felt by those officials that the position required an individual to possess an ability to "get along" with others in view of the importance of the coordinating and liaison aspects, and that Teuton had demonstrated he possessed such a trait during during the period in which he had administered the program in a highly satisfactory manner. However, regardless of that fact, Secretary Wainwright testified that had Fitzgibbon possessed the necessary experience at correctional institutions, he would have been appointed to the position since he had more retention points than Teuton. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Exhibits 15, 21, 28) On July 13, 1977, Fitzgibbon's immediate supervisor Sam T. Siler, Jr., Planner and Evaluator III, signed a "Employee Service Rating," dated June 10, 1977, regarding Fitzgibbon for the annual rating period from July 1, 1976 to July 1, 1977. This report reflected an overall rating of "Above Satisfactory" and contained complimentary statements concerning Fitzgibbon's performance of duty. Siler considered that this was a first draft only and that it was necessary for him to "defend" it before his next supervisor, the Bureau Chief Roesch. It was his practice -- a common one in the DOR -- for such a rating to be reviewed by a higher-level supervisor prior to putting it in final form. Siler "negotiated" the rating with Roesch who in turn took it to Assistant Secretary Jones, his supervisor; Jones told Roesch that he should review with Siler all of Fitzgibbon's activities and that the rating should be defensible. He also indicated, however, that Siler's rating appeared to be a "little high." Roesch informed Siler that the rating should be lower because it was too high when compared with ratings received by others in the bureau. Siler acknowledged that he might have overrated Fitzgibbon because he knew that personnel cuts were in the offing, and agreed with Roesch to a lower rating. Siler then went on vacation and when he returned, a new rating had been prepared with signatures of superiors already affixed. The report gave Fitzgibbon an overall rating of satisfactory and lower ratings in specific areas including less flattering comments. Although the rating was signed by his supervisors on July 20, 1977, Fitzgibbon did not receive a copy of the report until October 18th. He declined to sign the rating form and prepared a memorandum, dated October 20, 1977, which indicated his non-concurrence with the rating as reflecting less than an adequate evaluation of his work and contributions to the department. The existing personnel directive in the DOR provides that it is the responsibility of the employee's immediate supervisor to rate each employee under his supervision and then review the form with the employee, at which time the employee signs or declines to sign the form. At that point, the employee's department head is to review the form, placing his comments or recommendations thereon, signing and then transmitting to the personnel officer and the superintendent (in this case Secretary Wainwright) prior to transmittal of the form to the central personnel office. Siler told Fitzgibbon at the time he handed him a copy of the rating on October 18 that he did not want to sign the changed rating already signed by Jones and Roesch, but that Roesch had told him it would be in his best interests to sign it. (Testimony of Ball, T. Jones, Siler, Fitzgibbon, Exhibits 22, 23, 25, 27)
Recommendation That the Career Service Commission deny the appeal. DONE and ENTERED this 9th day of May, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Earl Archer, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32301 Edward M. Teuton 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Conley Kennison Attn: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
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."
The Issue Whether the Florida Department of Corrections' Emergency Rule 33ER83-3 constitutes an invalid exercise of delegated legislative authority for the reasons contained in petitioner's Petition for Determination of Validity of Emergency Rule, dated November 21, 1983.
Findings Of Fact On November 18, 1983, the Department filed and adopted Emergency Rule 33ER83-3, which provides: Shaving. All male inmates in the custody of the Department shall be clean shaven. An exemption from this requirement may be granted on medical grounds if it is determined by qualified medical staff that shaving would be detrimental to the inmate's health. In such cases the inmate may be required to keep his facial hair closely trimmed with scissors or clippers. In the December 2, 1983, Florida Administrative Weekly, Vol. 9., No. 48, the Department stated its reasons for finding an immediate danger to the public health, safety or welfare, justifying adoption of the emergency rule: The Department's rule requiring inmates to be clean shaven has recently been held invalid because of a failure to include provision for medical exemptions. If inmates were able to grow beards, mustaches and other facial hair it would seriously interfere with the identification of inmates by staff. To maintain institutional security and order it is essential that staff members be able to identify inmates easily. The emergency rule, by its terms, requires all male inmates in the Department's custody to be clean shaven, but authorizes a medical exemption. The rule applies to petitioner Adams because he is a male inmate in the Department's custody who grows facial hair. These facts are inferences which arise from the following: The hearing was held in guarded quarters at Baker Correctional Institution; Mr. Adams was obviously a male; and he wore a uniform identical to that worn by two inmates who testified. The clean-shaven rule is strictly enforced by the Department. One enforcement checkpoint is the inmate dining hall. Inmates with facial hair, and without no-shaving passes (proof of medical exemption) are required to shave their facial hair prior to eating. Food is not withheld, however, if they promise to shave immediately after eating. (Testimony of McGuire) There are sound reasons which justify the adoption of the rule on an emergency basis. If inmates were allowed to grow facial hair, such as beards and mustaches, the Department's ability to quickly and accurately identify them would be seriously impaired. Inmates with facial hair could easily and quickly alter their appearance by shaving. This would make it more difficult to identify inmates who commit crimes such as rape, robbery, and assault within the correctional institutions. For the same reasons, it would be more difficult to identify and apprehend inmates who successfully escape because the picture distributed to law enforcement agencies would depict inmates only in their clean-shaven condition. (Testimony of Townsend) The extent to which facial hair changes a person's appearance is illustrated by the recent experience of John Townsend, Assistant Superintendent of Baker Correctional Institution. During a two-week vacation in August 1983, he grew a mustache. On his return, he toured the correctional institution without being recognized by correctional officers. Two officers required him to show identification. (Testimony of Townsend) There is a bona fide infectious condition known as Pseudo Folliculitis Barbae ("PFB") which occasionally afflicts male inmates. In its acute form, it infects an inmate's face causing symptoms such as sores, puss, and bumps. Medical treatment consists of applying an antihistamine facial cream such as Caladryl, and authorizing the inmate to forgo close shaving for approximately two weeks. In lieu of shaving, whiskers are cut with scissors or clippers; this allows facial hair to grow to a length of 1-2 millimeters. PFB symptoms vary, and actual medical treatment must be decided on an individual basis. Some conditions may require only facial cream, others may require no-shaving passes for periods shorter or longer than two weeks. (Testimony of Di-Huyen Luu, M.D.)
Findings Of Fact The Petitioner is an inmate incarcerated at the Florida State Prison in Starke, Florida. In accordance with plea arrangements, Petitioner was convicted of numerous charges of robbery, burglary, sexual battery, and false imprisonment in Circuit Courts in Dade and Broward Counties, Florida. He received numerous and various prison sentences, all of which were to run concurrently with a 99- year sentence. Assuming that Petitioner is eligible for statutory gain time for good behavior, his sentence would expire sometime prior to the year 2080. During July, 1981, Petitioner was interviewed by an examiner of the Florida Parole and Probation Commission for the purpose of establishing a presumptive parole release date (PPRD). Under Parole and Probation Commission rules then in effect, the examiner was to consider the severity of the offense committed by the Petitioner, calculate a "salient factor score" and apply various aggravating or mitigating circumstances in determining a recommended PPRD. The examiner classified the offense as "greatest (most serious III);" determined a salient factor score of nine based upon prior convictions, total time served, the existence of burglary as a present offense of conviction, the number of prior incarcerations, and the Petitioner's age of first commitment; and applied numerous aggravating circumstances based upon the nature of various of the charges that had been lodged against Petitioner. The examiner recommended a PPRD of March 4, 2092. On August 26, 1981, the Parole and Probation Commission considered the examiner's recommendation and affirmed it. Petitioner is now pursuing a review of the PPRD before the Commission. In promulgating the rules which were in effect when Petitioner'S PPRD was determined, the Parole and Probation Commission sought to isolate factors that would predict the probability of a successful parole outcome. There is no perfect predictive device on a case-by-case basis. An inmate's past behavior and statistical relationships that can be isolated provide the best predictive devices. The Commission's C utilization of a system which first classifies the offense characteristics, then applies a salient factor score and aggravating or mitigating circumstances is designed to set a presumptive parole release date based on an inmate's past behavior and based upon the statistical relationships that have been found to exist. The evidence does not establish that the guidelines adopted by the Commission in its rules which were applied to the Petitioner are arbitrary, capricious or unreasonable. The Parole and Probation Commission has amended the rules which were followed in the setting of the Petitioner's PPRD. The Petitioner continues to be affected, however, by the rules as they existed prior to the amendments because those rules provide the basis for his PPRD.
Findings Of Fact At the time of the formal hearing in this proceeding, Petitioners were inmates incarcerated at Union Correctional Institution. Union Correctional Institution Policy Memorandum No. 65, issued June 7, 1976 and revised and effective since October 23, 1980, provides in pertinent part that: Inmates are prohibited from using typewriters for personal correspondence or for matters other than "official state business." Violation of that Policy Memorandum may constitute a basis for disciplinary action. Petitioners have had mail returned to them because it was typewritten. (Petitioners' Exhibits 3, 4, and 5) Based on the returned mail to Petitioners, all of them have been substantially affected by the operation of the subject Policy Memorandum. As example, Petitioner Adams had several cards returned as being prohibited and was advised that if he questioned the return of those cards, he would be confined as a disciplinary action for questioning the operation of the rule as it relates to the returned cards. Additionally, Petitioner Adams lost a Clerk's job in the Law Library because he typed letters. Adams' dismissal resulted in lost "gain time" since he was dismissed for typing letters violation of Policy Memorandum No. 65. Petitioner Holland filed an application for a grant to a community college which was returned because it was typed in violation of Policy Memorandum No. 65. Finally, Petitioner Cribbs was unable to attend a favorite aunt's funeral because his request was typewritten and it was returned as being in violation of Policy Memorandum No. 65. The employees at Union Correctional Institution adhere to Policy Memorandum No. 65 strictly and employees who are derelict in their responsibilities covered in implementing that policy are subject to disciplinary action. UCIPM 65.5. (Petitioners' Exhibit 1) UCIPM 65 is a department policy, never promulgated as a rule, uniformly applied throughout Union Correctional Institution. It is, by its own terms, virtually self-executing and intended to require compliance. It therefore has the consistent effect of law.
Findings Of Fact The Petitioner, Paul R. Layton, is an inmate presently confined at the Tomoka Correctional Institution, Daytona Beach, Florida. Given a choice the Petitioner would not wear his hair any longer than his collar. His personal feeling, however, is that the rule is used as a harassment technique and is used to dehumanize and institutionalize the prisoners. The Respondent's rationale for the rule is that requiring prisoners to keep their hair short aids in identification of the individual prisoners within the institution and in the event of an escape. Prisoners have attempted escapes by altering their appearance. The Department of Corrections, pursuant to the challenged rule, has required prisoners to cut their hair such that it is above their collar and off of their ears. The Department houses approximately 27,000 inmates, all of whom are required to wear similar uniforms. When a prisoner escapes, the Department of Corrections must provide a current photograph of the escaped prisoner to law enforcement agencies. Requiring short standardized haircuts substantially reduces the cost and difficulty such current photographs. Petitioner contended that the rule is discriminatory in that female inmates are not subjected to the same haircut standards. The majority of female inmates wear their hair long and when they change the length of their hairs they are rephotographed. Shorter hair is more sanitary for those prisoners who are involved in food preparation. Long hair can also constitute a safety hazard for those inmates who operate machinery.
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
