83-001652RX Gary M. Piccirillo And Douglas L. Adams vs. Department Of Corrections Status: Closed DOAH Final Order on Tuesday, April 17, 1984.

Summary: Petitioners failed to meet their BOP to show the rules challenged where invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. PICCIRILLO and )

DOUGLAS L. ADAMS, )

)

Petitioners, )

)

vs. ) CASE NO. 83-1652RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

_________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William E. Williams, held a public hearing in this

cause on August 13, 1983, at Union Correctional Institution, Raiford, Florida.

APPEARANCES

For Petitioners: Gary M. Piccirillo and

Douglas L. Adams, pro se

Union Correctional Institution

Post Office Box 221

Raiford, Florida 32083

For Respondent: William H. Ravenell, Esquire

Assistant Attorney General

Department of Legal Affairs

The Captiol

Tallahassee, Florida 32301

Petitioners, who at the time of formal hearing in this cause were inmates

incarcerated at Union Correctional Institution, challenged the validity of Rules

33-11.025, 11.065, 11.075, 11.085, and 11.11, Florida Administrative Code, as

invalid exercises of delegated legislative authority. In addition, Petitioners

challenge as an unpromulgated, and therefore invalid, rule Respondent's Policy

and Procedure Directive 4.07.24.

Final hearing in this cause was scheduled for August 12, 1983, by Amended

Notice of Hearing dated July 15, 1983. At the final hearing Petitioners

testified in their own behalf and called Glen Chambers and Kenneth Snow as their

witnesses. Petitioners offered Petitioners' Exhibits 1 and 2, which were

received into evidence. Respondent called Ron Jones as its only witness and

offered Respondent's Exhibit 1, which was received into evidence.

In the petition filed herein, Petitioners challenge the validity of

Respondent's promulgated rules as hereinbefore described on the grounds that

they restrict and condition the award of gain time as provided in Section

944.275, Florida Statutes, and further argued that those rules are impermissibly

vague allegedly due to their ". . . failure to set forth procedures [to insure]

that inmates who earn additional gain time under statutory provisions actually

receive [it] . . . . " Petitioners also contend that Policy and Procedure

Directive 4.07.24 is invalid because it: improperly delegates decision-making

authority to deny an award of additional gain time to a classification

specialist who may arbitrarily deny such an award; restricts and conditions the

provisions of Chapter 33-11, Florida Administrative Code; and because it ". . .

has a practical and actual effect of a `rule' without being properly adopted . .

. ."

Both Petitioners and Respondent have submitted proposed findings of fact

for consideration by the Hearing Officer. To the extent that those proposed

findings are not included in this order, they have been specifically rejected as

being either irrelevant to the issues in this cause or as not having been

supported by evidence of record.

FINDINGS OF FACT

At all times material hereto, Petitioners were inmates incarcerated at

Union Correctional Institution in Raiford, Florida. Respondent has stipulated

that Petitioners have "standing" to challenge the rules and the policy and

procedure directives which are the subject matter of this proceeding.

The Secretary of the Department of Corrections has issued Policy and

procedure Directive initially dated June 23, 1982, and revised July 12, 1982.

The purpose of the directive was . . ." [t]o thoroughly explain the gain time

program and to set forth guidance for uniform implementation department-wide on

its face, the directive purports to be issued pursuant to the authority

contained in Sections 944.275, 944.28, 945.21, and 775.087, Florida Statutes,

and Chapter 33-11, Florida Administrative Code.

The directive contains ten separate sections. The first two sections,

entitled Authority and Purpose of Directive merely recite the aforementioned

statutory and rule basis for issuance of the directive, and indicate that the

purposes of the directive is to explain and facilitate implementation of the

gain time program. The third section, entitled Definitions, simply reiterates

in substantially similar language, the definitions of the different types of

gain time contained in Section 944.275, Florida Statutes. Section 4 of the

directive contains special conditions to the award of gain time, including

disciplinary or court action, unsatisfactory institutional performances,

corrective consultations, administrative confinement, close management, inmates'

assignment on Death Row, inmates serving three years' mandatory sentences, and

the like. Each of the requirements of this section of the directive is either

identical to or drawn directly from Rule 33-11.11, Florida Administrative Code,

or Section 944.28(2)(a), Florida Statutes. The remaining six sections of the

directive deal with eligibility for, methods for crediting and processing

procedures for the award of basic gain time, additional gain time, work gain

time, constructive gain time, extra gain time, and special gain time. Again,

each of these sections reiterate requirements already contained in Rules 33-

11.045, 33-11.055, 33-11.065, 33-11.075, 33-11.085, and 33-11.09. These

sections of the directive do not purport to create or otherwise adversely affect

rights of inmates in any manner which differs from the aforementioned rules.

Under the policy and procedure directive, classification officers employed

by the Department of Corrections serve a limited function in the award of gain

time. With respect to basic gain time, corrections officers merely check to

make sure that no disciplinary report has been filed against an inmate for the

period in which gain time is being awarded. They exercise no discretion in the

award of basic gain time. With respect to extra gain time or constructive gain

time, the classification officer merely sits as a member of a classification

team which determines the amount of any such award. Meritorious gain time is

customarily instituted by the classification team as a whole, with the final

decision-making authority resting with the agency head of the Department of

Corrections. In each instance, classification officers have limited

participation in the award of gain time, and may not act alone to deny inmates

appropriate gain time awards.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the

subject matter of, and the parties to this proceeding. Section 120.56, Florida

Statutes.

2. Section 945.21, Florida Statutes, provides, in pertinent part, as

follows:

(1) The department shall promulgate

regulations governing the administration

of the correctional system and the operation

of the department. In addition to specific

subjects otherwise provided for herein, the

regulations of the department may relate to:

(c) Gain-time for good conduct of, release

payments to, and release transportation of

inmates. . . ."

3. Section 944.275(7), Florida Statutes, provides that ". . . [t]he

department shall promulgate rules to implement the granting, forfeiture, and

restoration of gain-time."

4. Pursuant to the authority contained in the aforementioned sections,

Respondent has promulgated Chapter 33-11, Florida Administrative Code. In this

proceeding, Petitioners have specifically challenged the validity of Rules 33-

11.025 relating to limitation on gain time deductions; 33-11.065 relating to the

award of work gain time; 33-11.075 relating to the award of constructive gain

time; 33-11.085 relating to the award of extra gain time; and, 33-11.11

governing with-holding or forfeiture of gain time. Petitioners argue that each

of these sections ". . . restricts and conditions the award of gain time as

provided in Section 944.275, Florida Statutes . . .", and that each of the

challenged rules is ". . . vague by [their] failure to set forth procedures [to

insure] that inmates who earn additional gain time under statutory provisions

actually receive [it] . . . ." It is specifically concluded, as a matter of law,

that each of these contentions is without merit. Where, as here, the

legislature has delegated broad discretionary rulemaking authority to an agency,

". . . the validity of regulations promulgated thereunder will be sustained so

long as they are reasonably related to the purposes of the enabling legislation

and are not arbitrary or capricious. . . . " Florida Beverage Corporation v.

Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1975); General Telephone Company of

Florida v. Florida Public Service Commission, 6 FALR 1016, 1019 (Fla. 1984).

Further, where an agency has responded to rulemaking incentives and has adopted

as rules its policy statements of general applicability,". . . [p]ermissible

interpretations of statute must and will be sustained, though other

interpretations are possible and may even preferable according to some views . .

. ." Here, the legislature has specifically delegated broad rulemaking authority

to the Department of Corrections in the award of various categories of gain

time. The rules adopted by the department, as challenged herein, are

permissible interpretations pursuant to its statutory grant of authority, and it

is therefore concluded, as a matter of law, that Petitioners have failed to

establish a record basis for invalidating the challenged rule.

5. Section 120.52(15), Florida Statutes, defines the term "rule" to mean:

. . . each agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes

the organization, procedure, or practice

requirements of an agency and includes any

form which imposes any requirement or solicits

any information not specifically required by

statute or by an existing rule . . . .

Agency statements which meet the definition of a "rule" within the meaning of

Section 120.52(15), Florida Statutes, but have not been adopted according to the

rulemaking requirements of Section 120.54, Florida Statutes, are invalid.

Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977)

Agency statements which purport in and of themselves to create rights and

adversely affect others, and which are applied prospectively with the force and

effect of law, allowing little or no discretion in their implementation, are

rules and are void unless formally adopted. Florida State University v. Dann,

400 So.2d 1304 (Fla. 1st DCA 1981). However, where agency statements that have

not been adopted as rules simply track the language of either a statute or a

validly adopted rule, it is unnecessary that they be adopted pursuant to the

requirements of Section 120.54, Florida Statutes. See, DeDakis v. Florida Real

Estate Commission, 388 So.2d 22 (Fla. 1st DCA 1980). In such cases, as with the

policy and procedure directive here attacked as an unpromulgated rule, it is not

the statement itself, but rather the statute and the validly promulgated rules

which create or otherwise affect the rights of persons subject to its

application. Here, the policy and procedure directive does no more than

reiterate the requirements of existing statutes and validly promulgated rules,

and was not required to be formally adopted. Accordingly, Petitioners'

contention that Policy and Procedure Directive No. 4.07.24 constitutes an

invalid unpromulgated rule is without merit.

Accordingly, based upon the foregoing Findings of Fact and Conclusions of

Law, the relief sought by Petitioners should be, and the same is, hereby denied,

and the petition dismissed.

DONE AND ENTERED this 17th day of April, 1984, at Tallahassee, Florida.

___________________________________

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings

Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 1984.

COPIES FURNISHED:

Gary M. Piccirillo Douglas L. Adams

Lake City Community Union Correctional Institution

Correctional Institution Post Office Box 221

Post Office Box 777 Raiford, Florida 32083

Lake City, Florida 32055

Carroll Webb, Executive Director

William H. Ravenell, Esquire Joint Administrative Procedures

Department of Legal Affairs Committee

The Capitol, LL04 120 Holland Building

Tallahassee, Florida 32301 Tallahassee, Florida 32301

Liz Cloud, Chief

Louis A. Vargas, General Counsel Bureau of Administrative Code

Department of Corrections Department of State

1311 Winewood Boulevard 1802 The Capitol

Tallahassee, Florida 32301 Tallahassee, Florida 32301