The Issue Whether Rules 33-3.005(2), (7) and (11), 33-3.0051, and 33-5.006(8), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact The Petitioner and the Intervenor; Standing. The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections. At all times relevant to this proceeding, the Petitioner was subject to the rules of the Respondent. At all times relevant to this proceeding, the Petitioner's marital status was single. At all times relevant to this proceeding, the Intervenor, Ann Hintenlang, was a married woman. The Intervenor is not related to the Petitioner. The Petitioner and the Intervenor have attempted to get approval for the Intervenor to visit the Petitioner. The Respondent has refused to approve the Intervenor as a visitor of the Petitioner because she is a married woman unrelated to the Petitioner. The Respondent's rejection of the Intervenor as a visitor is based upon the Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida and the operation of the Respondent. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted governing mail, visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code, titled "Visitors." Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following: Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made. . . . Rule 33-5.006(7), Florida Administrative Code, provides: (7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere. Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code. Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides: (3) No visit should be denied: . . . . (c) for any reason unrelated to the security, order or rehabilitative objectives of the institution. Rule 33-5.006(8), Florida Administrative Code, provides the following: (8) Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Respondent interprets the portion of Rule 33-5.006(8), Florida Administrative Code, challenged in this proceeding and emphasized in finding of fact 15, to allow a single male inmate to have a single female visitor and, therefore, prohibits a single male inmate from receiving visitation from a married female visitor not related to the inmate. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, as argued in its proposed final order, is intended "in part to deter potential problems involving visitors to the institution and to promote security of the institution and the inmates because of fights and conflicts which have occurred in the visiting park." See proposed finding of fact 7 of the Respondent's Proposed Final Order. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 is uniformly applied by the Respondent. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Rule 33-3.005, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.005, Florida Administrative Code, other than the rule itself. The Petitioner has challenged Rule 33-3.005(2), (7) and (11), Florida Administrative Code. Rule 33-3.005(2), Florida Administrative Code, provides: (2) Legal mail shall be defined as: Mail to and from municipal, county, state and federal courts. Mail to and from state attorneys. Mail to and from private attorneys. Mail to and from public defenders. Rule 33-3.005(7), Florida Administrative Code, provides: (7) The institution shall furnish postage for mail to courts and attorneys and for pleadings to be served upon each of the parties to a lawsuit for those inmates who have no funds at the time the mail is submitted to the mailroom, but not to exceed payment for the original and two copies except when additional copies are legally required. The inmate shall be responsible for proving that copies in addition to the routine maximum are legally necessary. Rule 33-3.005(11), Florida Administrative Code, provides: (11) "Privileged mail" is a category that includes, mail to and from public officials, governmental agencies and the news media. Privileged mail may be opened only for inspection for contraband and only in the presence of the inmate. Such mail may not be read except for signature and letterhead. If necessary, it may be held for a reasonable time pending verification that it was sent by or is properly addressed to any attorney, a court, a public official, a governmental agency or a member of the news media. The weight of the evidence failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent. Rule 33-3.0051, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.0051, Florida Administrative Code, other than the rule itself. Rule 33-3.0051, Florida Administrative Code, governs the manner in which institutions of the Respondent are required to provide photographic copying services to inmates. Although the Petitioner has not designated which specific language in Rule 33-3.0051, Florida Administrative Code, he believes is invalid, the Petitioner has evidently challenged the requirement of Rule 33-3.0051(3), Florida Administrative Code, that "[i]nmates will be charged $0.15 per page for standard legal or letter size copies . . . " and the following portion of Rule 33-3.0051(4), Florida Administrative Code: (4) Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there are no funds in his inmate account at the time the copies are completed and the assessment of cost is determined. If an inmate requesting copies has any funds in his account, he shall be required to pay for copies furnished him at the rate of $0.15 per page until the costs reduce his account to zero. . . . The weight of the evidence failed to prove that Rule 33-3.0051, Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.0051, Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent.
The Issue Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent stipulated that the Petitioner has standing to institute this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Rule 33-7.005, Florida Administrative Code. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution." Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989). Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights. --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). The Challenged Rule provides, in pertinent part: Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody. All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . . The Respondent releases approximately 40,000 to 45, 000 inmates each year. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.
The Issue Whether Rule 33-3.006(1)(c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact Standing. The Petitioner, Jeffrey Scott Gamble, is an inmate in the custody of the Respondent, the Department of Corrections, at Marion Correctional Institution. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner's AM/FM radio was confiscated by the Respondent as contraband because the radio had been altered by the addition of an AC cord and a switch. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, the rules of inmate conduct, the operation and management of correctional institutions and all other aspects of the operation of the prison system in Florida. Rule 33-3.0045, Florida Administrative Code. Rule 33-3.006, Florida Administrative Code, defines what constitutes "contraband" in a prison, prohibits the possession of contraband by inmates and provides the manner in which contraband will be disposed of. Rule 33-3.006(1)(c), Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), defines "contraband" to include, the following: (c) Any item or article which is altered from its original condition in such a way that it presents a threat to the security or order of the institution. The determination of whether an item constitutes "contraband" pursuant to the Challenged Rule is determined by correctional officers at each institution. The legislative authority cited for the Challenged Rule is Sections 944.09 and 945.215, Florida Statutes. The legislative provisions implemented by the Challenged Rule are Sections 944.47 and 945.215, Florida Statutes. The Petitioner's Challenge. The Petitioner has alleged that the Challenged Rule "is an invalid exercise of delegated legislative authority as it enlarges the specific provisions of law implemented [Section 120.52(8)(c), Florida Statutes], it contravenes the specific provisions of law implemented [Section 120.52(8)(c), Florida Statutes], and it fails to establish adequate standards for agency decision and/or vests unbridled discretion in the agency [Section 120.52(8)(d), Florida Statutes]." With regard to whether the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" found in Section 120.52(8)(c), Florida Statutes, the Petitioner has alleged that the Challenged Rule: . . . expands the definition of the word contraband and in so doing expands the items that are then subject to forfeiture beyond that authorized by the law implemented. 10. In the sections of Florida Statutes cited as the law implemented there is a definition for the word contraband. This definition is contained in Chapter [sic] 944.47 (1)(a), Florida Statutes. This definition does not support the view that the alteration of an item causes it to be contraband. Petitioner's Initial Complaint. With regard to whether the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" found in Section 120.52(8)(d), Florida Statutes, the Petitioner has alleged that the Challenged Rule: . . . is invalid because it has inadequate standards and/or vest the Respondent with unbridled discretion in deciding when an alteration presents a threat to the security or order of the institution. . . . The Respondent's Interpretation of the Challenged Rule. It is the position of the Respondent that any item in an inmate's possession which has been altered must be confiscated under the Challenged Rule. An item is "altered" when it is not in its original condition. It is the Respondent's position that any change in the original condition of an item or the item's use constitutes an alteration. It is the Respondent's position that any alteration to an item in an inmate's possession constitutes a threat to the order or security of the institution. It is the Respondent's position that the determination of whether an item that has been altered is a threat to the order or security of the institution is "only pertinent for the purpose of the disciplinary proceeding."
Findings Of Fact The initial Petition for Administrative Review was filed on August 22, 1991. The Petition was signed by Donald Eugene Halpin and Jeffery Lynn Fowler. The Petition, which was purportedly also filed by Richard Edward Jackson, was not signed by Mr. Jackson. In the Petition Mr. Halpin and Mr. Fowler challenged Rule 33-3.04(9), Florida Administrative Code. The Challenged Rule provides, in pertinent part: . . . The return address of all outgoing mail must contain the inmate's committed name, identification number and institutional address. The institutional name in the return address must be spelled out completely with no abbreviations. It was alleged in the Petition that the Challenged Rule is "arbitrary or capricious in its application." The Petition also contained an allegation that the Challenged Rule provides "no legitimate or compelling purpose when weighed against its adverse effect on Petitioners and their family and friends." Throughout the Petition it was alleged that there are "less restrictive forms the Respondent could employ to accomplish [its] goal . . . ." In this regard, the Petition contains the following allegation: 11. Petitioners have no qualms with the Respondent informing those individuals they write that they are state correctional inmates. However, Petitioners do object to the manner in which Respondent implements this restrictive measure. There is a much less restrictive means to accomplish the same objective, i.e., letting individuals know they are receiving letters from state correctional inmates. As the rule stands now, it is arbitrary or capricious as applied to the Petitioners. No facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8)(d), Florida Statutes, were included in the Petition. Finally, the following relief was requested and the following statement was made in closing: WHEREFORE, Petitioners respectfully move the Division of Administrative Hearings to declare Chapter 33-3.04 to be arbitrary or capricious in its application. Furthermore, Petitioners reserve the right to proffer First and Fourteenth Amendment violations during any administrative hearings [sic] or motions for rehearing for appellate purposes. On November 1, 1991, an Order Granting Motion to Dismiss with Leave to Amend was entered. On December 2, 1991, a pleading titled "Amended Petition for Administrative Review" was filed by Mr. Halpin and Blanche Moseley with the case number of this case identified as the case that the pleading was being filed in. Through the Amended Petition Mr. Halpin and Ms. Moseley attempted to initiate the following challenge: Petitioners, Donald E. Halpin and Blanche Moseley, file their Amended Petition for Administrative Review, pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 and 120.57, Florida Statutes, to challenge Rule 33-3.004, Florida Administrative Code . . . . . . . . 4. Petitioners file this action pursuant to Chapter [sic] 120.52(8)(d)(e), 120.56 (Halpin being a State Prisoner must utilize Section 120.56) and 120.57 (Ms. Moseley being a free citizen will utilize Section 120.57), Florida Statutes. Petitioners will allege Chapter [sic] 33-3.04, F.A.C., is vague, vest unbridled discretion in the agency, and is arbitrary or capricious in its application. Furthermore, Petitioner Moseley would allege Chapter [sic] 33-3.04, F.A.C., violates the First, Eighth and Fourteenth Amendment guarantees to the United States Constitution. It is further alleged under the "Conclusion" section of the Amended Petition that Ms. Moseley's challenge is based upon Section 120.54, Florida Statutes, although no proposed rule or rule amendment has been challenged in the Petition or Amended Petition. In support of the allegation that the Challenged Rule is vague, it is alleged in the Amended Petition that the Challenged Rule "does not set forth why the public must be protected, e.g., the types of crimes committed by inmates, the number of inmates who violated U.S. Mail regulations, and how other crimes were committed by inmates through U.S. Mail." In support of the allegation that the Challenged Rule vests unbridled discretion in the Respondent, it has been alleged in the Amended Petition that the Challenged Rule is only intended as punishment--by informing those who come in conduct with an inmate's mail that the mail is from someone who is in prison. Several allegations are also included in the Amended Petition concerning how Ms. Moseley's constitutional rights are being violated by the Challenged Rule. The Amended Petition is devoid of any alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule is invalid under Sections 120.54 or 120.56, Florida Statutes. Mr. Jackson and Mr. Fowler did not file an amended petition.
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: The three petitioners are inmates at Union Correctional Institution, Raiford, Florida, in the custody of the Department of Corrections. All three of the petitioners have had their PPRD's established by the respondent-commission as follows: In June of 1982, Mr. Piccirillo's PPRD was established by the commission to be September 30, 1986. In January of 1982, Mr. Adams' PPRD was established by the commission to be November 11, 1991. In December of 1982, petitioner Hemming's PPRD was established by the commission to be September 29, 1993. Subsequent to the commission having established their PPRD's, all three of the petitioners have been transferred from one Florida penal institution to another state institution as follows: Mr. Piccirillo was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1982. Mr. Adams was transferred from Polk Correctional Institution to Union Correctional Institution on August 18, 1932. Mr. Hemming was transferred from Avon Park Correctional Institution to Union Correctional Institution on February 16, 1983. The petitioners were not transferred to Union Correctional Institution because of any unsatisfactory institutional conduct at their former institutions. Petitioners are currently scheduled by the commission for biennial interviews to review their established PPRD's as follows: Mr. Piccirillo is scheduled for a biennial interview in March of 1984. Mr. Adams is scheduled for a biennial interview in October of 1983. Mr. Hemming is scheduled for a biennial interview in September of 1984. The following additional findings are made from evidence presented at the hearing: The respondent-commission has not made a finding that any of the petitioner's institutional conduct has been unsatisfactory under the challenged rule nor has respondent extended their PPRD's or refused to authorize their EPRD's. In applying the challenged rule, the fact that an inmate has been transferred to a higher custody or higher level institution is only considered to be unsatisfactory institutional conduct where the commission receives documentation evidencing institutional misconduct as the basis for the transfer. Petitioners transfers from other institutions to Union Correctional Institution would not be considered unsatisfactory institutional conduct under the challenged rule because there is no documentation of institutional misconduct which led to these institutional transfers.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.001, 33-3.006, 33-3.0025, 33-22.004(3)(A), 33-22.0012 Code 3, s. 3-12, 33-29 and 33-4.001, 33-4.002" and Internal Operating Procedure Number AG-91.51 were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules and IOP concerns the possession of contraband and punishment therefor. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 2, State of the Case and Facts, provides the following: 2. That the (Respondents) Rules as 33-29 et. seq. 33- 3.006, 33-3.0025, 33-22.0012 Code 3, s 3-12 is [sic] invalid, arbitrary, capricious, vague, delegation to exceed, modify, contravenes, the specific provisions of laws [sic] implemented, citation required by 120.54(7), Florida Statutes and 944.09(1)(A). This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in punishing the Petitioner for having contraband in his possession. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules and the IOP. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules or the IOP are unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rules and the IOP are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7190R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Legal Affairs, and the State Attorney of the Eighth Judicial Circuit, the Respondents in case number 91-7190R as Respondents and addresses his challenge to other rules, internal operating procedures and directives of the other named Respondents challenged in case number 91-7190R. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rules, the IOP or the other matters challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
Findings Of Fact Petitioner is a Florida corporation with its business located in Tampa, Florida. Respondent is a stated agency charged with responsibility for investigating and resolving unlawful employment practices. Its duties and powers are enumerated in Chapter 23, Florida Statutes, the Human Rights Act of 1977. 2. Respondent has adopted Rules 9D-8.06, 8.22(2), 9.03(4), and 9.03(7), Florida Administrative Code. These rules authorize Respondent to issue subpoenas, serve them by registered mail, and enforce them through judicial proceedings. The rules specifically authorize issuance, service, and enforcement of subpoenas in connection with investigations of unfair employment practices. They provide that inferences may be drawn from the failure of a person to provide requested information. . . Linda Parties filed a complaint against Petitioner with the Respondent, alleging sex discrimination by Petitioner. Based upon the complaint, Respondent initiated an investigation. It formally requested information from Petitioner on July 13, 1979. On April 7, 1981, Respondent issued a subpoena in connection with the investigation and served it by registered mail in accordance with its rules. Petitioner objected to the subpoena and has not provided the requested information. Respondent has sought to enforce the subpoena through a "Petition for Enforcement" filed in Circuit Court in Leon County, Florida. Circuit Judge Donald O. Hartwell has entered an Order which provides: This cause came to be heard on the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena filed by the Human Development Center, Respondent. Both parties were represented by Counsel who presented argument to the court. The court being otherwise fully advised enters this its order; therefor it is, Ordered that the service of an investigatory subpoena served by certified mail pursuant to Rule 9D-8.22, Florida Administrative Code is valid service. Such service is not required to be served in accordance with Florida Statutes 48.031 or Rule 1.410(c), Florida Rules of Civil Procedure. It is further, Ordered that the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena is denied. It is further, Ordered that further proceedings to enforce the investigatory subpoena in this cause are stayed pending the ruling of Hearing Officer G. Steven Pfeiffer in Case No. 81-2101RX now set for hearing on October 21, 1981. Respondent has made no determination of reasonable cause to believe that Petitioner has engaged in any unlawful employment practice.
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, 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.
