STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ARMANDO CESAR SANTANA, )
)
Petitioner, )
)
vs. ) Case No. 09-0829RX
)
DEPARTMENT OF FINANCIAL ) *AMENDED AS TO COPIES
) FURNISHED ONLY
SERVICES, )
)
Respondent. )
)
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on January 21, 2010. Petitioner and the court reporter participated by videoconference in Miami, Florida. Respondent's counsel and witness participated by videoconference with the Administrative Law Judge in Tallahassee.
APPEARANCES
For Petitioner: Armando Cesar Santana, pro se
3780 West Flagler Street Miami, Florida 33134
For Respondent: David J. Busch, Esquire
200 East Gaines Street 645A Larson Building
Tallahassee, Florida 32399
STATEMENT OF THE ISSUE
The issue is whether Florida Administrative Code Rules 69B-211.041(3) and (11) and 69B-211.042(3)(a), (8)(a), (b) and
(c), (9)(a) and (b), (17)(b)2. and (c)1., 2. and 3., and (21) are an invalid exercise of delegated legislative authority, pursuant to Section 120.56(1)(a), Florida Statutes.
PRELIMINARY STATEMENT
On February 13, 2009, Petitioner filed with the Division of Administrative Hearings (DOAH) an Amended Petition for Relief under Sections 120.56 et seq. & 120.57 et seq., Florida Statutes. Notwithstanding the use of "amended," this is the initial pleading that Petitioner filed with DOAH. The 25-page petition is a rambling statement of grievances coupled with claims for nearly the full range of administrative relief, including a rule challenge, a request for variance, and possible requests for a formal or informal hearing on denials--one recent and one not--of applications for a title insurance agent license. DOAH acquired jurisdiction of only the rule challenge because Respondent never transmitted any of the other claims to DOAH for hearing.1
Unable to identify the rules that were under challenge or the grounds for the rule challenge, the Administrative Law Judge, sua sponte, on February 17, 2009, entered an order requiring a more definite statement and striking irrelevant
allegations and claims. On April 2, 2009, Petitioner filed a Supplemental Petition for Relief Under Sections 120.56(1)-(3), Florida Statutes. Except for a request for variance, the lengthy Supplemental Petition for Relief apparently omits the stricken claims from the Amended Petition, but apparently adds a challenge to statutes that allegedly represent an unconstitutional delegation of legislative authority.
On April 17, 2009, Respondent filed a motion to dismiss, and, after receiving an extension of time to respond, on May 25, 2009, Petitioner filed a response. After careful study of the Supplemental Petition for Relief, on September 10, 2009, the Administrative Law Judge entered an 11-page order that recites the few relevant facts that may be gleaned from the Supplemental Petition for Relief and restates that DOAH has no jurisdiction over the decisions of Respondent to deny Petitioner's license applications or a constitutional challenge to statutes. The order strikes certain pleadings with prejudice and, as to the remainder, gives Petitioner one last opportunity to state a claim on which relief might be granted. The order authorizes Petitioner to file a two-page pleading including substantially nothing but a chart with two columns: one showing each rule challenged and the other showing the provisions of Section 120.52(8), Florida Statutes, allegedly violated by each rule.
The order states that, if Petitioner timely complies with this
requirement, the Administrative Law Judge would require him to file "a supplemental pleading with a short explanation of why each rule violates each subsection of Section 120.52(8)."
By Second Amended Petition filed October 20, 2009, Petitioner filed a compliant pleading that challenges the above- cited rules as invalid exercises of delegated legislative authority, pursuant to Sections 120.52(8)(b), (c), (d) and (e) and 120.536(1), Florida Statutes.2 Concluding that another pleading was not required by Section 120.56, Florida Statutes, as explained in the Conclusions of Law, the Administrative Law Judge never required Petitioner to supplement his two-page pleading, nor did Respondent request the filing of such a supplemental pleading.3 Instead, the day after Petitioner filed the Second Amended Petition, the Administrative Law Judge set the case for hearing on November 24, 2009.
By motions filed October 26 and 30, 2009, respectively, Petitioner and Respondent requested a continuance of the final hearing. By order entered November 6, 2009, the Administrative Law Judge granted the requests and reset the hearing for January 21, 2010.
At the hearing, Petitioner called one witness and offered into evidence one exhibit: Petitioner Exhibit 1. Respondent called one witness and offered into evidence 27 exhibits: Respondent Exhibits 1-27. All exhibits were admitted.
The court reporter filed the transcript on February 8, 2010. Respondent and Petitioner filed proposed final orders on April 8 and 9, 2010, respectively.
FINDINGS OF FACT
The Parties and Standing
Pursuant to Section 626.211, Florida Statutes, Respondent is responsible for processing applications for insurance licenses.4 Each year, Respondent handles about 100,000 applications from persons seeking some form of insurance license. About 40 percent of these applicants have a criminal record, and 15-20 percent of them have one or more felonies.
Petitioner is among the 15-20 percent of applicants with felonies. On December 8, 1976, in the Supreme Court, County of New York, New York, in Case Nos. 3026A-76 and
3027A-76, Petitioner entered a plea of guilty to two felonies of criminal possession of a weapon, one in the first degree and one in the third degree. He was adjudicated guilty and sentenced to three years' imprisonment. On April 28, 1982, in the United States District Court, District of Puerto Rico, Case No.
81-0289, Petitioner entered a plea of guilty to the felony of making a false statement in an application for a passport. He was adjudicated guilty and sentenced to two years' imprisonment, which he served in New Jersey concurrently with the next sentences. On January 25, 1982, in New Jersey Acc. No. 35-81,
Petitioner entered a plea of guilty to the crime of possession of a defaced firearm. He was sentenced to a prison term of 18 months, with a minimum of nine months. On the same date, in New Jersey Acc. No. 36-81, Petitioner entered a plea of guilty to the felony of possession of controlled substances with intent to distribute. He was sentenced to a prison term of five years, with a minimum of two years. On April 17, 1992, in the United States District Court, Southern District of Florida, Case No.
90-766-CR, Petitioner entered a plea of guilty to the felonies of possession of a firearm by a convicted felon and the illegal transfer of a firearm in violation of the National Firearms
Act--after several other counts against him had been dropped. Petitioner was adjudicated guilty and sentenced to a prison term of 18 months followed by three years of supervised release. On April 12, 2005, a federal judge revoked Petitioner's supervised release and sentenced him to a prison term of 11 months for a violation of supervised release.
On May 10, 2007, the Florida Office of Executive Clemency restored Petitioner's civil rights, except to possess or own a firearm, for any and all felony convictions in Florida, another state, or a United States court, for which Petitioner had completed any term of imprisonment, parole, probation, or community control. The executive order restored Petitioner's
civil rights for all of the felonies described above, except for the crime of drug trafficking.5
On May 18, 2008, Petitioner filed with Respondent an application for a license as a resident title insurance agent. Respondent denied this application.
By Notice of Denial dated October 13, 2008, Respondent informed Petitioner that it was denying his application based on the 1976 "felony"6 of criminal possession of a weapon, 1982 felony of a false statement on a passport application, and 1992 felony of possession of a firearm by a convicted felon. The Notice of Denial cites Section 626.611(7) and (14), Florida Statutes. Without noting the restoration of civil rights that Petitioner had received 18 months earlier, the Notice of Denial calculates the waiting period, before Petitioner may submit another application, as 25 years, based on 15 years for the first crime of moral turpitude and five years each for the second and third such crimes. The letter informs Petitioner that the 25-year waiting period would run from the trigger date of April 17, 1992, which was the conviction date of the most recent felony.
An informal hearing on the denial took place on September 11, 2009. By final order dated January 15, 2010, Respondent denied Petitioner's application.
Incorporating the recommended order, the final order states that the 1976 felonies were for placing a bomb in a building in New York with the intent of causing property damage in furtherance of Petitioner’s anti-Castro activities, the 1982 felony was for falsely stating in a passport application Petitioner’s name and country of birth, and the 1992 felony was for possession of a firearm by a convicted felon. Applying the rules discussed below, the final order finds that all of the crimes are Class A crimes: the 1976 weapons offenses are within Florida Administrative Code Rule 69B-211.042(21)(iii), the 1982 false statement is within Florida Administrative Code Rule
69B-211.042(o) and (w), the 1982 possession of drugs and a defaced firearm are within Florida Administrative Code Rule 69B-211.042(21)(gg) and (fff), and the 1992 possession and
illegal transfer of a firearm are within Florida Administrative Code Rule 69B-211.042(21)(gg). Because the most recent felony occurred in 1992, the final order states that Petitioner must wait 24 years before submitting another application. The final order calculates this waiting period by applying 15 years for the first crime and five years for each of the two other crimes cited in the Notice of Denial, less one year for education.7
Noting the restoration of Petitioner's civil rights,8 the final order acknowledges that Section 112.011, Florida Statutes, prevents an agency from denying a person a license
solely due to a prior conviction, for which civil rights have been restored. However, the final order notes that Florida Administrative Code Rule 69B-211.042(17) authorizes Respondent to take into account the circumstances surrounding a prior conviction to determine the applicant's fitness and trustworthiness. The final order concludes that the application denial was based partly on the "circumstances and serious nature" of Petitioner's crimes, "and Respondent's conclusions that Petitioner lacked fitness and trustworthiness "
When he requested an informal hearing, Petitioner also filed this rule challenge. As set forth in the Second Amended Petition, Petitioner has challenged certain rules generally establishing the period during which an applicant must wait, after certain crimes, before he may apply for an insurance license and the effect of an executive order restoring civil rights. Respondent has stipulated that the challenged rules have substantially affected Petitioner insofar that his ability to obtain an insurance license has been adversely affected by these rules.
At the time of adopting the predecessor to Florida Administrative Code Rule 69B-211.042,9 Respondent sought to introduce greater uniformity in its decisionmaking process on applications from persons with criminal records. One internal
memorandum written at the time of the adoption of the rule illustrates this objective:
The purpose of the rule was thus to "minimize the subjectivity involved in reviewing an applicant's licensure application [by providing] a set of uniform responses to guide department staffers who review applications from individuals with criminal histories."11
However, neither the evidence nor the law implemented explains why Respondent selected waiting periods of 15 years for the wide range of crimes set forth in Florida Administrative Code Rule 69B-211.042(21) and five additional years for each additional such crime.
The Challenged Rules
Petitioner has challenged the underlined portions of Florida Administrative Code Rule 69B-211.042, which provides, in
relevant part:
* * *
Policy Specifically Concerning Effect of Criminal Records.
The Department interprets Sections
626.611(14) and 626.621(8), Florida
Statutes, which subsections relate to criminal records, as applying to license application proceedings. The Department interprets those statutes as not limiting consideration of criminal records to those crimes of a business-related nature or committed in a business context. More specifically, it is the Department’s interpretation that these statutes include crimes committed in a non-business setting, and that such crimes are not necessarily regarded as less serious in the license application context than are crimes related to business or committed in a business context.
* * *
Classification of Felony Crimes.
The Department makes a general classification of felony crimes into three classes: A, B and C, as listed in subsections (21), (22) and (23) of this rule. . . .
These classifications reflect the Department’s evaluation of various crimes in terms of moral turpitude, and of the seriousness of the crime as such factors relate to the prospective threat to public welfare typically posed by someone who would commit such a crime.
The names or descriptions of crimes, as set out in the classification of crimes, are intended to serve only as generic names or descriptions of crimes and shall not be read as legal titles of crimes, or as limiting the included crimes to crimes bearing the exact name or description stated.
The lists are not all-inclusive. Where a particular crime involved in an application is not listed in this rule, the Department has the authority to analogize the crime to the most similar crime that is listed. No inference is to be drawn from the absence of any crime from this list, to
the effect that said crime is not grounds for adverse action under this rule.
In evaluating law enforcement records, the Department shall use the highest classification into which the crime fits, where “A” is the highest classification.
A charge in the nature of attempt or intent to commit a crime, or conspiracy to commit a crime, is classified the same as the crime itself.
Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date.
Class A Crime. The applicant will not be granted licensure until 15 years have passed since the trigger date.
Class B Crime. The applicant will not be granted licensure until 7 years have passed since the trigger date.
Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date.
* * *
Applicants With Multiple Crimes.
The Department construes Sections 626.611 and 626.621, Florida Statutes, to require that an applicant whose law enforcement record includes multiple felony crimes wait longer than those whose law enforcement record includes only a single felony crime before becoming eligible for licensure in order to assure that such applicant’s greater inability or unwillingness to abide by the law has been overcome. Therefore, the Department finds it necessary that a longer waiting period be utilized in such instances, before licensure
can safely be granted. Accordingly, where the applicant has been found guilty or pled guilty or pled nolo contendere to more than one felony or to a felony and one or more misdemeanors, or to a combination of misdemeanors and felonies, the Department shall add 5 years to the waiting period for each additional felony or insurance-related misdemeanor, or misdemeanor involving a breach of trust or dishonesty, and one year each for all other misdemeanors.
The additional periods are added to the basic waiting period for the one most serious crime, and the combined total waiting period then runs from the trigger date of the most recent misdemeanor or felony crime.
* * *
General Policy Regarding Law Enforcement Matters Not Resulting in a Finding or Plea of Guilt or Nolo Contendere.
Fitness and Trustworthiness. The Department interprets Section 626.611(7), Florida Statutes, relating to demonstrated lack of fitness or trustworthiness, as being applicable to license application proceedings. Furthermore, the Department interprets said section as not limiting the evidence demonstrating the unfitness or untrustworthiness to evidence arising in an insurance context.
* * *
Effect of Loss or Restoration of Civil Rights.
A crime as to which civil rights have been restored remains part of the law enforcement record and must be revealed on the application.
1. A person who has been convicted of a felony shall not be eligible for licensure until such person has received a restoration of civil rights.
Restoration of civil rights does
not create any right to be granted a license.
After a person receives restoration of civil rights, the person may apply for a license and have the application reviewed in the same manner as applicants who never lost their civil rights.
The applicant must meet the standard qualifications required by applicable statutes and rules for the license sought.
1. An applicant will not be disqualified for licensure solely because of a prior conviction if the applicant has received a restoration of civil rights.
The Department shall take into account and rely upon the circumstances surrounding a prior conviction in determining an applicant’s fitness and trustworthiness to engage in the business of insurance.
If the Department denies an application based upon the circumstances surrounding a prior conviction, the Department will apply the waiting periods and mitigating factors set forth in Rule Chapter 69B-211, F.A.C., that are applicable to the crime for which the applicant was convicted.
* * *
Effect of Waiting Periods. The waiting periods established in this rule do not give a licensee a right to licensure after any set period of time if the Department finds additional evidence that the applicant still possesses a criminal propensity which poses an undue threat to the public welfare.
Class “A” Crimes include all those listed in this subsection, where such crimes are felonies, and all are of equal weight notwithstanding from which subparagraph they are drawn. The Department finds that each felony crime listed in this subsection is a
crime of moral turpitude.
Submitting false insurance claims or applications.
Crimes relating to workers’ compensation insurance.
Theft or other dishonest dealings with premiums or claims money.
Making false reports to insurance regulatory officials.
Grand theft or embezzlement from an insurance company or agency.
Armed robbery (face-to-face theft by threat of force or force).
Extortion. (h) Bribery.
(i) Misuse of public office. (j) Obstructing justice.
Treason against the United States, or a state, district, or territory thereof.
Abuse of elderly or disabled persons.
Altering public documents. (n) Forgery.
Perjury.
Racketeering.
Witness tampering. (r) Child abuse.
(s) Grand theft. (t) Larceny.
Burglary.
Breaking and entering. (w) Fraud.
(x) Embezzlement. (y) Tax evasion.
(z) Defrauding an innkeeper.
(aa) Passing worthless check(s) with intent to defraud.
(bb) Failure to pay tax.
(cc) Buying, receiving, concealing, or possessing stolen property.
(dd) Fraudulent obtaining of food stamps or other welfare fraud.
(ee) Shoplifting.
(ff) Adulteration or poisoning of drugs or food.
(gg) Illegal possession of a firearm. (hh) Impersonating or attempting to
impersonate a law enforcement officer. (ii) Robbery.
(jj) Unlawful possession of a postal key.
(kk) Securities fraud.
(ll) Sale of unregistered securities. (mm) Sale of securities by an
unregistered dealer. (nn) Postal fraud.
(oo) Obtaining controlled substance by fraud.
(pp) Not paying required tax as a transferee of a controlled substance.
(qq) Uttering a forged check. (rr) Forgery of a deed.
(ss) Defrauding the government.
(tt) Criminal possession of a forged instrument.
(uu) Credit card fraud. (vv) Conspiracy.
(ww) Carrying a concealed weapon/firearm.
(xx) Murder in all degrees.
(yy) Aggravated Assault (e.g., as with a deadly weapon).
(zz) Aggravated Battery (e.g., as with a deadly weapon).
(aaa) Rape.
(bbb) Sexually molesting any minor. (ccc) Sexual battery.
(ddd) Arson.
(eee) Aircraft piracy/hijacking.
(fff) Sale, importation, or distribution of controlled substances (drugs); or possession for sale, importation or distribution.
(ggg) Deriving income from another person’s prostitution activities.
(hhh) Running a gambling establishment. (iii) Unlawful placing, throwing, or
discharging a bomb.
(jjj) Battery of or threatening a law enforcement officer or public official in the performance of his/her duties.
(kkk) Kidnapping. (lll) Incest.
Class “B” Crimes include the following felony crimes:
Manslaughter.
Simple Assault.
Simple Battery.
Gambling.
Possession of burglary tools.
Resisting arrest with violence.
Damage to Property.
Criminal mischief.
Passing worthless check(s) without intent to defraud.
Class “C” Crimes include the following felony crimes:
Public drunkenness.
Driving under the influence.
Trespassing.
Resisting arrest without force.
Disorderly conduct.
Solicitation of prostitution.
Prostitution.
Obscenity.
Bigamy.
Sale of fireworks.
Criminal trespass.
Cruelty to animals.
Personal use of controlled substances (illegal drugs).
Possession of controlled substances (illegal drugs) for personal use.
Possession of drug paraphernalia for personal use.
Domestic disturbance not involving violence.
Violation of fish and game laws.
Crimes of civil disobedience relating to matters of conscience (e.g., burning of draft cards; nonviolent resisting of arrest at protests).
Illegal possession of weapon.
Fleeing arrest or fleeing a law enforcement officer.
Escape.
* * *
Specific Authority 624.308 FS. Law Implemented 112.011, 624.307(1), 626.161,
626.171, 626.201, 626.207, 626.211, 626.291,
626.601, 626.611(7), (14), 626.621(8),
626.631, 626.641 FS. History–New 10-17-02,
Formerly 4-211.042, Amended 7-21-04.
Petitioner has challenged the following portions of Florida Administrative Code Rule 69B-211.041:
For purposes of this rule part, the following definitions shall apply:
* * *
(3) “Crime of Moral Turpitude” refers to each felony crime identified in subsection 69B-211.042(21), F.A.C.
* * *
(11) “Trigger Date” is the date on which an applicant was found guilty, or pled guilty, or pled nolo contendere to a crime; or, where that date is not ascertainable, the date of the charges or indictment.
* * *
Specific Authority 624.308 FS. Law Implemented 112.011, 624.307(1), 626.161,
626.171, 626.201, 626.207, 626.211, 626.291,
626.601, 626.611(7), (14), 626.621(8),
626.631, 626.641 FS. History–New 10-17-02,
Formerly 4-211.041.
CONCLUSIONS OF LAW
Jurisdiction, Standing, Rule-Challenge Criteria, Burden and Standard of Proof, and Minimum Requirements of Rule-Challenge Petition
Subject to the discussion of standing immediately below, the Division of Administrative Hearings has jurisdiction
over the subject matter. §§ 120.56, 120.569, and 120.57(1), Fla. Stat. (2009). Section 120.56(1)(a), Florida Statutes, authorizes any person "substantially affected" by a rule to seek an administrative determination of the invalidity of the rule because it is an "invalid exercise of delegated legislative authority."
Respondent has stipulated to Petitioner's standing, but, in administrative proceedings, standing is jurisdictional, so it cannot be conferred by the consent of the parties. See, e.g., Abbott Laboratories v. Mylan Pharmaceuticals, Inc., 15 So. 3d 642, 651 (Fla. 1st DCA 2009) (dictum); Grand Dunes, Ltd. v. Walton County, 714 So. 2d 473, 474-75 (Fla. 1st DCA 1998) (standing in a proceeding to challenge a development order under Section 380.07(2), Florida Statutes). But see South Broward Citizens for a Better Environment, Inc. v. South Broward County Resource Recovery Project, 502 So. 2d 9 (Fla. 1st DCA 1986).
Petitioner is substantially affected by the rule provisions on which Respondent relied in denying his application for an insurance license. The exceptions to Petitioner's standing are discussed, below, in connection with the analysis of specific rule provisions.
Section 120.52(8), Florida Statutes, provides:
"Invalid exercise of delegated legislative authority" means action that goes beyond the powers, functions, and duties delegated by
the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; [or]
The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational[.]
* * *
Pursuant to Section 120.56(1)(e) and (3)(a), Florida Statutes, Petitioner has the burden of proving by a preponderance of the evidence that the "rule is an invalid exercise of delegated legislative authority as to the objections raised." Pursuant to Section 120.56(3)(b), Florida Statutes, the Administrative Law Judge may declare all or part of a challenged rule invalid.
In its prehearing memorandum and its proposed final order, Respondent cites Section 120.56(1)(b), Florida Statutes, and argues that the Second Amended Petition is insufficient and must be dismissed on this ground alone. Underlining the
provision on which Respondent relies, Section 120.56(1)(b) states:
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
This statute requires that a rule-challenge petition:
1) state with particularity the rule provisions alleged to be invalid; 2) provide a "sufficient explanation" of the "facts or grounds" for the alleged invalidity; and 3) state the facts to show that the petitioner is substantially affected by the rule he is challenging. The pleadings obviously satisfy the first and third requirements; Respondent contends that they fail to satisfy the second requirement.
However, Petitioner has identified the grounds for claiming that specific rules are invalid. The grounds are the subsections of Section 120.52(8), Florida Statutes, such as contravention of the law implemented, vagueness, or arbitrariness. See, e.g., Board of Clinical Lab Personnel v. Florida Association of Blood Banks, 721 So. 2d 317, 318 (Fla. 1st DCA 1998) ("A proposed rule may be held invalid on a number of grounds, including that the agency has exceeded its
rulemaking authority, that the proposed rule is arbitrary or capricious, or not supported by competent, substantial evidence.
§ 120.52(8), Fla. Stat."). Accord Baillie v. Department of Natural Resources, 632 So. 2d 1114, 1116 (Fla. 1st DCA 1994).
In arguing that Petitioner's pleadings fail to explain the "facts or grounds" for the alleged invalidity, Respondent contends that Petitioner must identify the reasoning behind its claim that specific rules violate specific provisions of Section 120.52(8), Florida Statutes. This would mean that a person challenging a rule may not prevail, even if he identifies a rule that violates one or more subsections of Section 120.52(8), Florida Statutes, unless he also supplies, at the pleading stage, the reasoning that reveals this violation.
Section 120.56(1)(b), Florida Statutes, ensures that the agency defending its rules knows what rules are challenged, the grounds for the challenge, and the standing of the challenger. An agency's preparation would be aided by knowing the reasoning that underlies a claim, for instance, that a specific rule contravenes a specific statute, but neither the Legislature nor the courts have so required. Cf. Department of
Highway Safety and Motor Vehicles v. Schluter, 705 So. 2d 81, 86 (Fla. 1st DCA 1998) (Benton, J., concurring in part and dissenting in part) (a petition challenging an unpromulgated rule impliedly was sufficient because it identified certain
agency policies and stated that these policies lacked statutory authority). Requiring a rule challenger to plead his reasoning should not be lightly inferred because doing so would leave a citizen subject to the force of an invalid rule merely because he cannot plead the correct reasoning or afford an attorney to do so for him. There is thus no basis for dismissing the Second Amended Petition for its failure to identify the correct reasoning in the pleadings before the hearing or even, post- hearing, in the proposed final order.12
Rulemaking Authority and Law Implemented
The sole specific authority cited for the challenged rules is Section 624.308(1), Florida Statutes,13 which provides:
The department and the commission may each adopt rules pursuant to ss. 120.536(1) and
120.54 to implement provisions of law conferring duties upon the department or the commission, respectively.
However, as noted below, Section 626.207, Florida Statutes, provides more specific authority for the adoption of these rules.
With two exceptions, the law implemented by the challenged rules is in Chapter 626, Florida Statutes. Section 626.611(7) and (14), Florida Statutes, is the statute that provides for mandatory adverse action by Respondent for relatively serious offenses and provides:
The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent, and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist:
* * *
(7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
* * *
(14) Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.
* * *
Section 626.621(8), Florida Statutes, is the statute that provides for discretionary adverse action by Respondent for less serious offenses and provides:
The department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, adjuster, customer representative, service representative, or managing general agent, and it may suspend or revoke the eligibility
to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611:
* * *
(8) Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.
* * *
Of considerable importance to this case, Section 626.207, Florida Statutes, provides for waiting periods and explains their purpose:
The department shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation pursuant to s. 626.611, s. 626.621,
s. 626.8437, s. 626.844, s. 626.935,
s. 634.181, s. 634.191, s. 634.320,
s. 634.321, s. 634.42 2, s. 634.423,
s. 642.041, or s. 642.043. The purpose of the waiting periods is to provide sufficient time to demonstrate reformation of character and rehabilitation. The waiting periods shall vary based on the type of conduct and the length of time since the conduct occurred and shall also be based on the probability that the propensity to commit illegal conduct has been overcome. The waiting periods may be adjusted based on aggravating and mitigating factors
established by rule and consistent with this purpose.
The department shall adopt rules establishing specific penalties against licensees for violations of s. 626.611, s. 626.621, s. 626.8437, s. 626.844, s.
626.935, s. 634.181, s. 634.191, s. 634.320,
s. 634.321, s. 634.422, s. 634.423,
s. 642.041, or s. 642.043. The purpose of the revocation or suspension is to provide a sufficient penalty to deter future violations of the Florida Insurance Code. The imposition of a revocation or the length of suspension shall be based on the type of conduct and the probability that the propensity to commit further illegal conduct has been overcome at the time of eligibility for relicensure. The revocation or the length of suspension may be adjusted based on aggravating or mitigating factors, established by rule and consistent with this purpose.
Also of considerable importance to this case, Section 626.641, Florida Statutes, imposes terms or durations for the adverse action authorized by Sections 626.611 and 626.621, Florida Statutes:
The department shall, in its order suspending a license or appointment or in its order suspending the eligibility of a person to hold or apply for such license or appointment, specify the period during which the suspension is to be in effect; but such period shall not exceed 2 years. A
license, appointment, or eligibility that has been suspended shall not be reinstated except upon the filing and approval of an application for reinstatement and, in the case of a second suspension, completion of continuing education courses prescribed and approved by the department; but the department shall not approve an application
for reinstatement if it finds that the circumstance or circumstances for which the license, appointment, or eligibility was suspended still exist or are likely to recur. In addition, an application for reinstatement is subject to denial and subject to a waiting period prior to approval on the same grounds that apply to applications for licensure pursuant to ss. 626.207, 626.611, 626.621, and 626.8698.
No person or appointee under any license or appointment revoked by the department, nor any person whose eligibility to hold same has been revoked by the department, shall have the right to apply for another license or appointment under this code within 2 years from the effective date of such revocation or, if judicial review of such revocation is sought, within
2 years from the date of final court order or decree affirming the revocation. An applicant for another license or appointment pursuant to this subsection must apply and qualify for licensure in the same manner as a first-time applicant, and the application may be denied on the same grounds that apply to first-time applicants for licensure pursuant to ss. 626.207, 626.611, and 626.621. In addition, the department shall not grant a new license or appointment or reinstate eligibility to hold such license or appointment if it finds that the circumstance or circumstances for which the eligibility was revoked or for which the previous license or appointment was revoked still exist or are likely to recur; if an individual's license as agent or customer representative or eligibility to hold same has been revoked upon the ground specified in s. 626.611(12), the department shall refuse to grant or issue any new license or appointment so applied for.
If licenses as agent or customer representative, or the eligibility to hold same, as to the same individual have been
revoked at two separate times, the department shall not thereafter grant or issue any license under this code as to such individual.
* * *
Addressing the restoration of civil rights, Section 112.011(1)(b), Florida Statutes, provides:
Except as provided in s. 775.16,[14]
a person
whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person whose civil rights have been restored may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.
The remaining provisions of the law implemented are unnecessary to this case.
III. Sections 626.611, 626.641 and 626.207,
Florida Statutes
Much of this order turns on the relationship of the challenged rules with Section 626.611, Florida Statutes, especially Section 626.611(14) (the Crime of Moral Turpitude Provision) and Section 626.611(7) (the Fitness Provision).
Applicants must satisfy both of these provisions, as well as the
15 other numbered subsections of Section 626.611 and various other statutes, including Section 626.621. Also, licensees may be disciplined for violating any of these provisions.
Section 626.611 does not give Respondent any discretion as to whether to take adverse action for a violation of this statute: if a licensee or applicant fails to satisfy a provision of Section 626.611, Section 626.611 mandates Respondent to take adverse action on a license or application. By contrast, if a licensee or applicant fails to satisfy a provision of Section 626.621(8), such as Section 626.621(8), which covers felonies not contained within Section 626.611(14), Section 626.621 authorizes, but does not require, Respondent to take adverse action on a license or application.
All but one of the adverse actions mandated by Section 626.611--i.e., denial, revocation, and refusal to renew or continue--imply that the adverse action is permanent.
Seemingly, the lone exception is if Respondent chooses to suspend, rather than revoke or refuse to renew, a license for a violation of Section 626.611.
However, when considered in conjunction with Sections 626.641 and 626.207, Florida Statutes, it is clear that the adverse actions mandated by Section 626.611 are not permanent.
Sections 626.641 and 626.207 provide the term or duration of various adverse actions identified in Section 626.611.
Section 626.207(1), Florida Statutes, authorizes Respondent to adopt rules establishing specific waiting periods for eligibility for licensure after "denial, suspension, or revocation," pursuant to Section 626.611, Florida Statutes, among other sections. The reference to "denial" means that Section 626.207(1) applies to applicants, as well as existing licensees.
Explaining that the "purpose of the waiting periods is to provide sufficient time to demonstrate reformation of character and rehabilitation," Section 626.207(1) leaves no doubt that the adverse actions mandated by Section 626.611 are not permanent and provides no affirmative authority for rules that impose waiting periods past the point of sufficient time for a person to demonstrate reformation of character and rehabilitation. Addressing directly the duration of authorized waiting periods, Section 626.207(1) states that these periods shall vary based on the type of offending conduct, the amount of time since the conduct occurred, and the probability that the propensity to commit "illegal conduct" has been overcome. The reference to "illegal conduct" clearly incorporates the Crime of Moral Turpitude Provision. Section 626.207(1) authorizes
Respondent to adopt rules imposing waiting periods, but only subject to these statutory standards.
Section 626.641(1) limits to two years the suspension mandated by Section 626.611 or authorized by Section 626.621. More relevant to this case, Section 626.641(2) limits to two years the period during which a person whose license has been revoked may not apply for a new license. Prior to two years, a once-revoked15 applicant may not apply even if he has reformed and rehabilitated. After two years, the focus returns to the purpose of the waiting period, which, as stated in Section 626.207(1), is to provide sufficient time for reform and rehabilitation.
Section 626.641(2) provides that the application of a once-revoked person must meet all of the criteria of Sections 626.207, 626.611, and 626.621 that apply to the application of a first-time applicant. Thus, the mitigative effect of Section 626.641(2), like Section 626.207(1), reaches applicants, as well as licensees.
Section 626.641(2) supports a term or duration of adverse action only so long as the disqualifying condition, such as incompetence16 or violating the Fitness Provision, still exists, or the disqualifying act, such as violating an anti- fraud provision17 or the Crime of Moral Turpitude Provision is likely to recur. Section 626.641(2) states:
In addition, the department shall not grant a new license or appointment or reinstate eligibility to hold such license or appointment if it finds that the circumstance or circumstances for which the eligibility was revoked or for which the previous license or appointment was revoked still exist or are likely to recur[.]
Application of Law to Challenged Rules
Florida Administrative Code Rule 69B-211.042(3)(a): Statements of Statutory Interpretation
The first sentence of Florida Administrative Code Rule 69B-211.042(3)(a) states that the Crime of Moral Turpitude Provision and Section 626.621(8), Florida Statutes, "relate to criminal records" and apply to license application proceedings. In the second and third sentences, this rule states that these statutes are not limited to consideration of crimes of a business nature, these statutes include nonbusiness crimes, and nonbusiness crimes are not necessarily less serious than business-related crimes. None of these statements is inaccurate in any respect.
This rule mentions "criminal record," which is defined at Florida Administrative Code Rule 69B-211.041(4). This rule restricts "criminal records" to felonies for which the applicant was found guilty or pleaded guilty or nolo contendere, but this rule includes crimes for which civil rights have been restored. The effect of a restoration of civil rights is discussed in detail below. Rule 69B-211.042(3)(a) itself accurately links
Sections 626.611(14) and 626.621(8) to criminal records. Any flaw is in the rule that defines "criminal records" to include crimes for which civil rights have been restored, but Petitioner did not challenge that rule, and the operative rule provision that contravenes Section 112.011(1)(b), Florida Statutes, is among the rules that Petitioner challenged and is discussed below.
For these reasons, Florida Administrative Code Rule 69B-211.042(3)(a) does not enlarge, modify, or contravene the law implemented. This rule does not exceed the grant of rulemaking authority extended to Respondent in Section 624.308(1), Florida Statutes. This rule is not vague, it does not fail to establish adequate standards for agency decisions, it does not vest unbridled discretion in the agency, and it is not arbitrary or capricious.
Florida Administrative Code Rule 69B-211.042(8) and (9)(a) and (b) and Florida Administrative Code
Rule 69B-211.041(11): 15- and 5-Year Waiting Periods and Trigger Dates
Florida Administrative Code Rule 69B-211.042(8)(a)-(c) contains the major waiting periods of Rule 69B-211.042.18 Rule 69B-211.042(8)(a) imposes a 15-year waiting period for a Class A Crime. Having never been guilty of less than a Class A Crime, Petitioner is not substantially affected by Rule
69B-211.042(8)(b), which imposes a seven-year waiting period for
a Class B Crime, and Rule 69B-211.042(8)(c), which imposes a 5-year waiting period for a Class C Crime. Petitioner also
lacks standing to challenge the use of "law enforcement records" in Rule 69B-211.042(8) and (9)(a). As defined in Rule
69B-211.041(7), a "law enforcement record" includes the "criminal record" mentioned above, but adds pending criminal charges, arrests within 12 months of the application, and pretrial interventions within 12 months of the application. However, the record reveals no such law-enforcement involvement for Petitioner beyond, of course, his criminal record.
Florida Administrative Code Rule 69B-211.042(9)(a) adds five years to the waiting period for each additional felony or insurance-related misdemeanor or misdemeanor involving a breach of trust or dishonesty and one year for all other misdemeanors. Petitioner has committed multiple Class A Crimes, but no misdemeanors, so he lacks standing to challenge the portion of the rule adding five years for certain misdemeanors and one year for the remaining misdemeanors.
Florida Administrative Code Rule 69B-211.042(9)(b) adds the additional waiting period or periods to the waiting period for the most serious crime--or any Class A Crime, if they are all Class A Crimes, as in Petitioner's case. This rule states that the combined waiting period runs from the trigger date of the most recent misdemeanor or felony. Florida
Administrative Code Rule 69B-211.041(11) defines the trigger date as the date on which an applicant was found guilty or pleaded guilty or nolo contendere or, if such date is unavailable, the date of the charges or indictment.
The rule provisions extending the waiting period for multiple crimes and defining a trigger date do not enlarge, modify, or contravene the law implemented. Section 626.207(1), Florida Statutes, specifically authorizes Respondent to adopt rules establishing waiting periods for applicants to become eligible for licensure following denial for a violation of, among other statutes, Section 626.611. Section 626.207(1) specifically authorizes waiting periods based on aggravating circumstances identified by rule, and multiple violations are a common aggravating circumstance in disciplinary statutes and rules. Waiting periods must begin somewhere, and the trigger- date rule provisions are consistent with the applicable statutory provisions.
However, the duration of the waiting periods of 15 years for Class A Crimes and five years for each additional crime, as set forth in Rule 69B-211.042(8)(a) and (9)(a), respectively, enlarge, modify, and contravene Section 626.207(1), Florida Statutes, which provides: a) the purpose of the waiting periods is to provide the applicant with sufficient time to demonstrate reformation of character and rehabilitation;
and b) the waiting periods shall vary based on the type of conduct, the length of time since the conduct occurred; and the likelihood of recurrence; and Section 626.641(2), Florida Statutes, which relieves Respondent from the provisions of Section 626.207(1) only for two years following revocation and only so long thereafter as a disqualifying condition still exists or a disqualifying act is likely to recur.
The law implemented does not provide Respondent with much guidance for the length of waiting periods to be imposed on applicants guilty of, for example, violating the Crime of Moral Turpitude Provision. Section 626.641(2), Florida Statutes, sets a two-year minimum waiting period after a revocation before a person may file an application. This is the only quantitative guidance contained in the law implemented for the term of duration of waiting periods; the statutory instruction otherwise requires individualized determinations.
The problem is that Respondent has adopted excessive waiting periods relative to the statutes that it is administering. These waiting periods are 7.5 and 2.5 times longer than the only quantitative guidance provided in the statutes. More importantly, the waiting periods disregard the statutory criteria contained in Sections 626.641(2) and 626.207(1) and are so long as to overwhelm these criteria in many cases. By adopting such extensive waiting periods, both
for a single offense and each additional offense, Respondent has replaced the legislative scheme that allows an applicant to be licensed when, after reform and rehabilitation, it is unlikely that he will repeat his criminal act, with a regulatory scheme that forbids the licensure of an applicant for extensive periods of time, regardless of reform, rehabilitation, or the unlikelihood of a recurrence of the crime. Despite disclaimers to the contrary, these extensive waiting periods ignore the statutory criteria for licensure after discrete-act violations and impose instead punitive periods during which licensure is impossible, regardless whether the act is likely to recur or the person has reformed and rehabilitated.
Respondent's paramount concern is protection of the public; the Fitness Provision prevents, in all instances, the licensure of an unfit applicant. Respondent's remaining concerns are standardization of decisionmaking and administrative convenience. The problem with standardization of decisionmaking, which is a laudable objective, is that the statutory criteria--likelihood of recurrence, reformation, rehabilitation, and fitness--are not quantitative and do not lend themselves to standardization of decisionmaking:19 no two defrauders of innkeepers or two shoplifters travel the same paths of reform and rehabilitation in the months or years
following their misdeeds. The same is surely true of a murderer and an unlawful possessor of a postal key.
Also a laudable objective, administrative convenience, unlike standardization of decisionmaking, finds some support in the statutes. The problem with the administrative convenience embedded in these rule provisions is that Respondent has crafted a licensing process that provides it with so much convenience that it relieves Respondent of its statutory responsibilities of making determinations of reformation, rehabilitation, and the likelihood of recurrence.
Perhaps any meaningful waiting period, even the two years minimally required by Section 626.641(2), will result in a relatively brief periods during which reformed and rehabilitated persons are ineligible for licensure. But this case does not present a close question. Imposing a 15-year waiting period for every person who has violated the Crime of Moral Turpitude Provision ensures that many such persons will be serving their rule-mandated sentence long after they have reformed and rehabilitated and, thus, long after the expiration of any waiting periods authorized by statute.
None of the rule provisions addressed in this section exceeds the grant of rulemaking authority extended to Respondent in Section 624.308(1), Florida Statutes, and Section 626.207(1), Florida Statutes, which, although not cited in the rule as
authority, clearly authorizes rulemaking for variable waiting periods, based on types of conduct, aggravating circumstances, and other factors.
None of the rule provisions addressed in this section is capricious. Section 120.52(8), Florida Statutes, defines a rule as "capricious" if it is "adopted without thought or reason or is irrational." Respondent adopted these rule provisions to standardize the treatment of similarly situated applicants and, as may be inferred by the numbers of applications from applicants with criminal records, to impose some degree of administrative efficiency on the permitting process. These rules serve these ends, and this fact precludes a finding of a lack of thought, reason, or rationality.
However, Florida Administrative Code Rule
69B-211.042(8)(a) and the portion of Florida Administrative Code 69B-211.042(9)(a) that Petitioner has standing to challenge, but not Florida Administrative Code Rules 69B-211.042(9)(b) and
69B-211.041(11), are arbitrary in the selection of the 15- and five-year waiting periods. Section 120.52(8), Florida Statutes, defines a rule as "arbitrary" if it is "not supported by logic or the necessary facts." Nothing in the record provides, directly or inferentially, the logical or factual support for the duration of these two waiting periods. See Adam
Smith Enterprises v. Department of Environmental Regulation, 553 So. 2d 1260, 1264 (Fla. 1st DCA 1989) (groundwater rule setting wellfield zone of protection based on five-year groundwater travel time arbitrary and capricious; discussion during rulemaking workshop ranged from less than two years to more than
10 years and agency originally proposed 10 years, but agency later compromised on five years); Department of Health and Rehabilitative Services v. Johnson and Johnson Home Health Care, Inc., 447 So. 2d 361, 362-63 (Fla. 1st DCA 1984) (certificate- of-need rule requiring each existing provider must be seeing average of 300 patients per day arbitrary and capricious; sole support for rule was to protect existing providers from competition and no relationship existed between the rule and the health, morals, safety or welfare of the public). Cf. Board of Trustees of Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995) (rule limiting docks to 500 feet not arbitrary; surrounding docks averaged 200 feet, no surrounding dock exceeded 500 feet, and 500-foot limit was product of thoughtful balancing of competing considerations by agency).
No law implemented offers Respondent any guidance in setting the length of these waiting periods, except for the two- year minimum waiting period contained in Section 626.641(2), Florida Statutes. Nothing in the record provides a factual
basis for the selection of 15- and five-year waiting periods. There are no studies of Respondent's past experience in licensing persons guilty of, say, crimes of moral turpitude. To some extent, the rule provisions establishing the 15- and five- year waiting periods illustrate the inverse relationship that exists between the degree of detail provided by the legislative body and the likelihood that the rules adopted by the agency implementing such legislation will be arbitrary or capricious.
Lewis v. Florida State Board of Health, 143 So. 2d 867, 876 (Fla. 1st DCA 1962) ("When regulations are to be imposed in order to promote health, welfare, safety and morals it is necessary that exactions be fixed in the ordinance with such certainty that they not be left to the whim or caprice of the administrative agency."); Phillips Petroleum Co. v. Anderson, 74 So. 2d 544, 547 (Fla. 1954) (same).
To be sure, the legislature has the power to select waiting periods of whatever terms it chooses. In at least two other licensing schemes, the legislature has specified waiting periods, which happen to correspond to those that Respondent has adopted by rule, although, in both cases, the statutory schemes do not include counterparts to Sections 626.641(2) and 626.207(1) to authorize licensing upon the satisfaction of qualitative standards of reformation and rehabilitation. In Section 517.1611(2), Florida Statutes, which governs registrants
in the securities industry, the legislature has authorized the Financial Services Commission to adopt rules imposing "disqualification periods" of 15 years for a felony and five years for a misdemeanor for crimes related to the securities business. Thus, the legislature did not authorize the agency to adopt the duration of the disqualification; it specified the period and left it to the agency to adopt rules for mitigation and "an additional waiting period" for multiple offenses, as provided in Section 517.1611(2)(c).20
The legislature provided similar specificity in recent legislation revising the regulation of persons involved in the mortgage lending industry.21 Here, the legislation authorizes the Financial Services Commission to adopt rules providing for a permanent bar from licensure for persons convicted of felonies involving fraud, dishonesty, breach of trust and money laundering, a 15-year "disqualification period" for a person guilty of a crime of moral turpitude, a seven-year "disqualification period" for a person guilty of another felony, and a five-year "disqualification period" for a person guilty of a misdemeanor involving fraud, dishonesty, or moral turpitude. Also, the legislation provides affirmatively that a person is not eligible for licensure until the disqualification period ends.
Without the benefit of detailed legislative instruction and failing to develop any factual or logical support for its waiting periods, Respondent has imposed 15- and five-year waiting periods for tax evaders or passers of checks with intent to defraud, on the one hand, and rapists or persons guilty of treason, on the other hand; a 15-year waiting period for a murderer, but a 20-year waiting period for a person guilty of two counts of defrauding an innkeeper; and an additional
five-year waiting period for each additional felony, regardless of class, thus treating a second felony of kidnapping the same as a second felony of the violation of fish and game laws. On this record, these provisions of Rule 69B-211.042(8)(a) and (9)(a) are arbitrary.
None of the rule provisions addressed in this section is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Florida Administrative Code Rules 69B-211.042(21) and 69B-211.041(3): Crimes of Moral Turpitude
Florida Administrative Code Rule 69B-211.042(21) defines Class A Crimes and provides that they "all are of equal weight." Florida Administrative Code Rules 69B-211.042(21) and 69B-211.041(3) provide that all Class A Crimes are crimes of moral turpitude.
Petitioner lacks standing to challenge any of these rule provisions, except the subsections that describe his various crimes, which are crimes of moral turpitude.22 Petitioner's challenge thus does not include whether each of the remaining crimes cited in Rule 69B-211.042(21) is a crime of moral turpitude. Significantly, though, Florida Administrative Code Rule 69B-211.042(21) is illustrative, as provided in Rule 69B-211.042(7)(d), so the list is not an attempt to replace the statutory language of "crimes or moral turpitude" with a list of dozens of crimes.
However, Petitioner's large number of crimes means that he is substantially affected by the rule's statement that all of the listed crimes are of "equal weight."23 The statement in Rule 69B-211.042(21) that the 64 listed Class A Crimes are of "equal weight" enlarges, modifies, or contravenes the law implemented. Section 626.207(1) requires Respondent to predicate its determination of reformation and rehabilitation, in part, on the nature of the conduct of which the applicant is guilty. For a relatively brief waiting period, such as the two years contained in Section 626.641(2), the distinction between a murderer and a tax evader may be negligible in denying, briefly, the latter a chance to show that he is reformed and rehabilitated. But, when the waiting period runs 15 years for over five dozen crimes, a rule determining that all listed
crimes are of equal weight contravenes the mandate of Section 626.207(1) that Respondent examine the nature of the conduct of which an applicant is guilty. This rule provision is also arbitrary for the lack of logic or factual support in this record to treat all Class A Crimes of equal weight.
Otherwise, to the extent of Petitioner's standing, Florida Administrative Code Rules 69B-211.042(21) and
69B-211.041(3) do not enlarge, modify, or contravene the law implemented; do not exceed the grant of rulemaking authority extended to Respondent in Section 624.308(1); are not vague, do not fail to establish adequate standards for agency decisions, and do not vest unbridled discretion in the agency; and are not arbitrary or capricious, except to the extent noted in the last sentence of the preceding paragraph.
Florida Administrative Code Rule 69B-211.042(17)(b)2. and (c)1.-3.: Effect of Restoration of Civil Rights
Florida Administrative Code Rule 69B-211.042(17)(b)2. provides that the restoration of civil rights does not create any right to be granted a license. Florida Administrative Code Rule 69B-211.042(17)(c)1. adds that an applicant will not be disqualified for licensure solely due to a prior conviction, if he has had his civil rights restored. Florida Administrative Code Rule 69B-211.042(17)(c)2. notes that Respondent will take into account the circumstances surrounding a prior conviction in
determining whether an applicant satisfies the Fitness Provision. Although this subsection omits any mention of a restoration of civil rights, based on the heading and the contents of this subsection, it applies to such situations. Respondent will apply the Fitness Provision to all applicants. This rule provision advises that Respondent will do so, even if an applicant has had his civil rights restored, and the fitness determination will include consideration of the circumstances underlying the conviction for which the applicant's civil rights were restored. For the reasons set forth below, none of these rule provisions enlarges, modified, or contravenes the law implemented.
Although it omits mention of the restoration of civil rights, Florida Administrative Code Rule 69B-211.042(17)(c)3. also applies to the situation in which an applicant's civil rights have been restored. In imposing a 24-year waiting period, the final order obviously applied this rule by calculating the waiting period on Petitioner's crimes, despite the fact that his civil rights had been restored. For the reasons set forth below, the assignment of the waiting period, as though the applicant's civil rights had not been restored, enlarges, modifies, or contravenes the law implemented-- specifically, Section 112.011(1)(b), Florida Statutes, as it has been construed by the Florida Supreme Court.
Section 112.011(1)(b), Florida Statutes, provides that a person, such as Petitioner, whose civil rights have been restored shall not be disqualified to engage in any profession, except for crimes directly related to the profession in which the person seeks to engage. In Sandlin v. Criminal Justice Standards and Training Commission, 531 So. 2d 1344, (Fla. 1988), the Florida Supreme Court harmonized this statute with a licensing statute, Section 943.13(7), which requires that applicants must demonstrate good moral character to become certified law enforcement officers. The opinion notes that some jurisdictions treat pardons as eliminating both the crime and the underlying moral guilt or blame accompanying the commission of the crime, and other jurisdictions treat pardons, at least when the pardoned person is seeking public office, as eliminating neither the crime nor the underlying moral guilt or blame. As tends to happen after use of this rhetorical device, the Court chose the middle ground: the pardon eliminates the crime, but not the underlying moral guilt or blame. The Court held that the pardon removed any categorical disqualification from applying for office, but did not remove from consideration "the character of the criminal conduct underlying [the] conviction." Id. at p. 1347. Based on this reasoning, the Court reversed the holding in Sandlin v. Criminal Justice
Standards and Training Commission, 518 So. 2d 1292 (Fla. 1st DCA 1987), that had affirmed the decision of the agency refusing to certify the applicant due to the crime, without regard to consideration of his moral character and without regard to the fact that his civil rights had been restored.
Section 112.011(1)(b) and Sandlin mean that, when considering an application filed by a person who has committed a crime for which his civil rights have been restored, Respondent may consider the underlying circumstances of the crimes for which civil rights have been restored, but may not base its licensing decisions on the crimes themselves. Here, this means that Respondent must proceed under the Fitness Provision, not the Crime of Moral Turpitude Provision, which is exactly as provided in Florida Administrative Code Rule
69B-211.042(17)(c)1. and 2.
The problem arises after Respondent has determined the circumstances underlying the crime for which civil rights have been restored and has concluded that an applicant has not satisfied the Fitness Provision. Under Florida Administrative Code Rule 69B-211.042(17)(c)3., Respondent imposes a waiting period based on the crimes for which the applicant's civil rights were restored--in Petitioner's case, a waiting period of
24 or 25 years. But, under Section 112.011(1)(b) and Sandlin, adverse action may be based only on the underlying
circumstances, not on the crimes themselves.24 As is apparent when the waiting periods are lengthy, calculating the waiting periods based on crimes for which civil rights have been restored is doing indirectly what Section 112.011(1)(b) and Sandlin prohibit doing directly. In effect, by Rule
69B-211.042(17)(c)3., Respondent disregards the executive order restoring Petitioner's civil rights and the statute authorizing the executive order. Rule 69B-211.042(17)(c)3. is also vague because, on its face, it fails to apply to crimes for which an applicant's civil rights have been restored.
None of the rule provisions addressed in this section exceeds the grant of rulemaking authority extended to Respondent, fails to establish adequate standards for agency decisions, vests unbridled discretion in the agency, or is arbitrary or capricious. Except for Rule 69B-211.042(17)(c)3., none of the rules is vague.
ORDER
It is
ORDERED that:
The following rule provisions are stricken as invalid exercises of delegated legislative authority: Florida Administrative Code Rule 69B-211.042(8)(a),25 and (17)(c)3.; the phrase in the last sentence of Florida Administrative Code Rule 69B-211.042(9)(a), "for each additional felony"; and the phrase
in Florida Administrative Code Rule 69B-211.042(21), ", and are all of equal weight notwithstanding from which paragraph they are drawn."
The remainder of the Second Amended Petition is dismissed.
DONE AND ORDERED this 29th day of April, 2010, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2010.
ENDNOTES
1 § 120.56(1)(c), Fla. Stat., provides that a person challenging a rule must file a petition with the Division of Administrative Hearings. Other requests for hearing, such as in § 120.57 proceedings, are filed with the agency--in this case, Respondent. § 120.569(2)(a), Fla. Stat. This includes requests for variances from rules. § 120.542(5), Fla. Stat.
2 At the hearing, Petitioner moved to amend his Second Amended Petition by replacing an incorrect reference to Fla. Admin. Code R. 69B-211.042(17)(4) [sic] with Rule 69B-211.042(17)(b)2. and (c)(1). The Administrative Law Judge granted this motion without objection.
3 Three months later, two days prior to the start of the final hearing, Respondent filed a memorandum, in which it renewed its objection to the failure of Petitioner to provide his reasoning.
4 References to any form of insurance licensure in this Order include only those licenses within the scope of Florida Administrative Code Chapter 69B-211. See Fla. Admin. Code R. 69B-211.040(2).
5 As noted in the Conclusions of Law, pursuant to § 112.011(1)(b), Fla. Stat., the restoration of civil rights, when applied to licensing, does not reach the crime of drug trafficking.
6 There were two such felonies, not one.
7 One of the crimes omitted from the Notice of Denial is the 1982 drug trafficking felony. Due to this omission, Respondent did not base any of its adverse action on Petitioner's application on the fact that this crime is excepted from the scope of clemency under § 112.011(1), Fla. Stat. Thus, the standing determinations in this final order likewise do not consider the effect of this drug trafficking offense on the scope of the executive order apparently restoring Petitioner's civil rights.
8 See preceding endnote.
9 Originally contained in Fla. Admin. Code Chapter 4-211.
10 Respondent Exhibit 3, cumulative page 29.
11 Id.
12 An unspoken element of Respondent's contention, which may understandably only receive full voice on appeal, may be that, if Petitioner fails to identify the correct reasoning linking a rule with a ground of invalidity, the Administrative Law Judge may not do so on his own. Although Petitioner's proposed final order is a marked improvement on his earlier filings, it did not set the boundaries for the reasoning contained in the final order. However, Respondent may no more require the Administrative Law Judge to confine himself to the reasoning of Petitioner than it may require Petitioner to identify the reasoning in his pleadings or proposed final order.
Appellate courts expect trial courts to exercise independent judgment in adjudicating issues raised by the parties. See, e.g., M. D. v. Department of Children and Family Services, 924 So. 2d 827 (Fla. 2d DCA 2005). Of course, a judge may not inject new issues into a case. See, e.g., Rickenback v.
Kosinski, So. 3d , 2010 Fla. App. LEXIS 5038 (Fla. 5th DCA
2010). In a rule challenge where standing is not at issue, the challenger identifies the rules challenged and the grounds for invalidity. The Administrative Law Judge then analyzes these claims and determines if the challenged rules--not other rules added by the judge--are invalid for the cited grounds--not additional grounds added by the judge. As noted in the text above, the grounds are the subsections of § 120.52(8), Florida Statutes.
The relationship, in terms of reasoning, between the party and the trial judge finds an analogue in the relationship, in terms of reasoning, between the trial court and an appellate court.
Although an appellate court will not advance for a party theories and defenses that are omitted from the party's brief, the "tipsy coachman" doctrine allows an appellate court to adopt its own reasoning to affirm the decision of a trial court that has employed incorrect reasoning to reach the right result.
See, e.g., Dade County School Board v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). The application of this distinction can be difficult because sometimes the appellate court reaches the "right result," not by different reasoning, but by injecting an issue into the case. See, e.g., Robertson v. State, 829 So. 2d 901, 906-08 (Fla. 2002) (intermediate appellate court improperly affirmed trial court by applying Williams Rule--thus, injecting a new claim into the case--to reach the same result). Thus, courts must exercise care to distinguish between claims and reasoning.
The undersigned could find only one case in which a court considered applying the "tipsy coachman" doctrine to the relief of a party, not a lower court. In E. K. v. Department of Children and Family Services, 948 So. 2d 54 (Fla. 3d DCA 2007), the court declined to apply the doctrine to justify a termination of parental rights by the agency. However, at the trial level, the agency changed its theory or claim from actual abuse to prospective negligence and abandonment to physical altercations between the parents in the presence of the child. Although the result--termination of parental rights--remained a constant, these changes were of claims, which required different elements of proof, not merely of reasoning in support of a claim.
Respondent understandably would prefer to have had a chance at the hearing to have addressed the relationship of § 626.611 and
§§ 626.641(2) and 626.207(1), Fla. Stat. Of course, these latter statutes are among the statutes listed at the end of the challenged rules as law implemented, so their potential role in this case cannot now be a surprise. But the point of the pleading requirements in Section 120.56 and the "tipsy coachman" line of cases is that due process does not require advance notice of the judge's reasoning. However useful it might be to the parties, it is impractical, if not impossible, such as here, where the judge had not, at the time of the hearing, construed § 626.611 in conjunction with §§ 626.641(2) and 626.207(1).
In a rule challenge, an agency is presented a relatively easy means of rebutting the reasoning of the Administrative Law Judge--an appeal. By doing so, the agency stays the effect of the order invalidating the rule. § 120.56(3)(b), Fla. Stat.;
Abbot Laboratories v. Mylan Pharmaceuticals, Inc. 15 So. 3d 642, 653 (Fla. 1st DCA 2009). On appeal, the appellate court will consider the legal issues de novo. § 120.68(7)(d), Fla. Stat.; A. Duda and Sons, Inc. v. St. Johns River Water Management District, 17 So. 3d 738, 742 (Fla. 1st DCA 2009). These safeguards leave no support for an agency argument that would, under a claim of notice, convert the statutory duty of the Administrative Law Judge from determining if challenged rules are invalid on the grounds cited to determining if, regardless of the rules' invalidity, a challenger has discovered the reasoning to show why the challenged rules are invalid on the grounds cited.
13 The other subsection, § 624.308(2) is irrelevant to this case because it pertains to the discipline of existing licensees.
14 § 775.16, Fla. Stat., applies to any person convicted of the felony offense of the sale or trafficking in, or conspiracy to sell or traffic in, a controlled substance under Ch. 893, Fla. Stat., or the equivalent crime in another state or country.
15 § 626.641(3) prohibits Respondent from issuing a license to a person whose license has been revoked twice. § 626.641(2) prohibits Respondent from issuing a license to a person whose license was revoked for violating the "controlled-business" prohibition of § 626.611(12). This provision plays no role in this case and is probably less frequently encountered than the multiple-revocation exception, so the "controlled-business" exception will be ignored in the final order.
16 § 626.611(8), Fla. Stat.
17 §§ 626.611(5) (wilful misrepresentation of an insurance policy), 626.611(9) (fraudulent practices), 626.611(10) (misappropriation of funds), 626.611(15) (fraudulent workers' compensation application), and 626.611(17) (fraudulent act in viatical transaction), Fla. Stat.
18 Fla. Admin. Code R. 69B-211.042(4)(b) imposes waiting periods of one or two years for the failure to disclose various crimes in an application, and Fla. Admin. Code R. 69B-211.042(5)(b) imposes a waiting period for an applicant's demonstrated lack of fitness for specified misdemeanors. However, Petitioner does not challenge these provisions.
19 This is a fact-driven exercise, as recognized and sustained in Brewer v. Ins. Comm'r & Treasurer, 392 So. 2d 593, 596 (Fla. 1st DCA 1981).
20 The length of the disqualification period in the securities industry is 15 years for one crime, but this does not support Respondent's choice of a 15-year waiting period for a Class A Crime because the question in determining whether the rule provision contravened the statutes required consideration of the effect of the rule on §§ 626.641(2) and 626.207(2), for which there are no counterparts in Ch. 516, Fla. Stat. The same distinction applies to the new legislation covering the
mortgage-lending industry, as discussed in the text immediately following this endnote.
21 Laws of Florida, Ch. 2009-241, creates, effective October 1, 2010, new § 494.0011(2)(c), Fla. Stat.
22 These crimes are clearly crimes of moral turpitude: 1976 weapons crimes--unlawful placing, throwing or discharging a bomb under Rule 69B-211.042(21)(iii); 1982 passport crime--perjury under Rule 69B-211.042(21)(o), and fraud, under Rule 69B- 211.042(21)(w); 1982 defaced firearm crime--illegal possession of a firearm under Rule 69B-211.042(21)(gg); 1982 crime of drug possession with intent to distribute--same under Rule
69B-211.042(21)(fff); and 1992 possession and illegal transfer of firearm crimes--illegal possession of a firearm under Rule 69B-211.042(21)(gg).
As held by the Florida Supreme Court:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. [Citation omitted.] It has also been defined as anything done contrary to justice, honesty, principle or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. [Citation omitted.]
State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611, 146
So. 660, 661 (Fla. 1933).
23 It would be an unenviable task to assign the "less serious" tag to one of Petitioner's crimes, but, in terms of immediate threat to public safety, the passport offense gives way to the offenses involving a bomb and firearms.
24 For this reason, the reference in Fla. Admin. Code R. 69B-211.042(3)(a) to "criminal records," which is defined in
Rule 69B-211.041(4) to include crimes, even if the applicant's civil rights have been restored, does not enlarge, modify, or contravene the law implemented. Respondent may consider crimes for which the applicant's civil rights have been restored, but only in assessing the circumstances underlying the conviction.
25 But not the flush language immediately preceding subsection (a).
COPIES FURNISHED:
Scott Boyd, Executive Dir./General Counsel Joint Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32399-1300
Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services
200 East Gaines Street Tallahassee, Florida 32399-0390
Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Honorable Alex Sink Chief Financial Officer
Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
David J. Busch, Esquire Department of Financial Services
Division of Legal Services 612 Larson Building
200 East Gaines Street Tallahassee, Florida 32312
Armando Santana
3780 West Flagler Street Miami, Florida 33134
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Administrative Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Administrative Appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 10, 2011 | Mandate | |
| Apr. 15, 2011 | Opinion | |
| Apr. 29, 2010 | Amended DOAH FO | Amended as to addition to Copies Furnished. |
| Apr. 27, 2010 | DOAH Final Order | Rules setting a 15-year waiting period after crime of moral turpitude; rule doing the same, even after restoration of civil rights; and rule treating wide range of crimes as of equal weight are invalid exercises of delegated legislative authority. |
