Findings Of Fact On November 4, 1991, the Petitioner, David Lee Moore, filed a Petition for Administrative Determination. In the Petition, the Petitioner challenged Rules 33-3.0082, 33-3.0083, 33-6.009, and 33-3.123, Florida Administrative Code, and P.P.D. 4.07.21. The Challenged Rules govern the following matters: Rule 33-3.0082, Florida Administrative Code, deals with "Protective Management" which is defined as "the removal of an inmate from the general population for the protection of the inmate." Rule 33-3.0082(1), Florida Administrative Code. Rule 33-3.0083, Florida Administrative Code, deals with "Close Management" which is defined as "long-term single cell confinement of an inmate apart from the general population, where an inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0082(1), Florida Administrative Code. Rule 33-6.009, Florida Administrative Code, was transferred to Rule 33- 6.0045, Florida Administrative Code, which deals with custody classification of inmates. Rule 33-3.123, Florida Administrative Code, according the Petitioner, deals with inmate telephone use. Apparently, the Petitioner is referring to Rule 33-3.0123, Florida Administrative Code. The Petitioner has alleged that the Challenged Rules constitute an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(d) and (e), Florida Statutes. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. Although the Petition contains some "legalese, it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. As an example, the Petitioner has alleged in paragraph 13 of the Petition the following: The Petitioner challenges the validity, legality, and constitutionality of the five (5) rules cited, supra; Petitioner submits that these challenged rules, on their face and as applied, are invalid and unconstitutional for the following reasons: The rules violate the Petitioner's Federal and State Constitutional rights to substantive and Procedural Due Process of law, as guaranteed by the 8th and 14th amendments; the [sic] also violates the Petitioner [sic], First, Fourth, Fifth, Eighth, and Ninth, Constitutional Amendment [sic]. They are an invalid exercise of delegated legislative authority contrary to Chapter 120.52(8)(d) & (e), Fla. Statute in that: The rules are vague, fail to establish adequate standards for agency decisions, and, they vest unbridied [sic] discretion in the Agency. The Rules are arbitrary and capricious. The only specific allegations concerning any of the Challenged Rules involve complaints about the Respondent's application of at least some of the Challenged Rules to the Petitioner. For example, in paragraph 29 of the Petition the Petitioner alleges that "33-3.0082 is defective for failure to utilize mandatory language to protect the Petitioner from punitive measures and the agency's actions deprives [sic] the Petitioner of the ability to clearly establish his due process liberty interest . . . ." See also paragraphs 5-8 and 12 of the Petition. The incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings or other actions. In paragraph 12 of the Petition it is alleged "Petitioner contends that the action, acts, omissions, and practise [sic] complained of in the foregoing Petition has [sic] been complained of before . . . ." Having failed to obtain a favorable response to his grievances and other actions, the Petitioner is seeking through this process to have the incidents reviewed. The Petitioner's allegations concerning the alleged incidents are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, alleged actions of the Respondent. The Petitioner has also attempted to raise constitutional arguments to support his challenge. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional. The only allegation concerning Rule 33-3.0123, Florida Administrative Code, contained in the Petition is that this rule "is intentionally designed to cut off ALL inmates who cannot read or write from communicating with family members as well as friends." No facts to support his argument are alleged and, on the face of this rule, there is no basis for this allegation. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. The Petitioner was informed that the Petition was being dismissed and he was given an opportunity to file an amended petition. The Petitioner did not file an amended petition.
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent stipulated that the Petitioner has standing to institute this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Rule 33-7.005, Florida Administrative Code. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution." Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989). Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights. --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). The Challenged Rule provides, in pertinent part: Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody. All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . . The Respondent releases approximately 40,000 to 45, 000 inmates each year. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.
The Issue Whether Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Darryl James McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing inmate visitation and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides: Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Petitioner, a married male inmate, has made requests to have females, by whom he has had children and who have custody of those children, placed on his visiting list. The females by whom the Petitioner has children are his current wife, his former wife and a girlfriend. Those requests have been denied by the Respondent. The Petitioner has attempted to add his former girlfriend and his former mother-in-law to his visiting list. His former wife and all of his children are currently on his visiting list. His current wife was not on his visitor list because she was also incarcerated at the time of the final hearing. The Petitioner has suggested that he has been denied visitation with his children by his former wife and his current wife that he is unable to see because of his inability to have more than one female visitor. The Petitioner's former girl friend was offered a special visitor's pass which was limited to week days but, due to her employment, did not visit the Petitioner. Although the evidence proved that the application of the Challenged Rule to the Petitioner and the Petitioner's circumstances make it difficult for the Petitioner to have visitation with some of his children, the evidence failed to prove that the Challenged Rule itself bars married inmates from having visitation with minor children from other marriages or relationships. The Respondent promulgated the Challenged Rule to limit the number of female visitors a married inmate may have for the following reasons: Male inmates tend to request visitation from more females than males. Due to limited space for visitation, the increasing number of inmates at every institution and the burden placed on the staff of the correctional institutions to handle visitation, the number of visitors had to be limited. Each visitor has to have a local law enforcement background check and each visitor must be checked by staff before visitation. Visitation is generally allowed between 9 and 3 on visiting days but visitors may all show up at essentially the same time. There is limited staff to handle the checking of visitors and the supervision of the visitation area.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.001, 33-3.006, 33-3.0025, 33-22.004(3)(A), 33-22.0012 Code 3, s. 3-12, 33-29 and 33-4.001, 33-4.002" and Internal Operating Procedure Number AG-91.51 were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules and IOP concerns the possession of contraband and punishment therefor. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 2, State of the Case and Facts, provides the following: 2. That the (Respondents) Rules as 33-29 et. seq. 33- 3.006, 33-3.0025, 33-22.0012 Code 3, s 3-12 is [sic] invalid, arbitrary, capricious, vague, delegation to exceed, modify, contravenes, the specific provisions of laws [sic] implemented, citation required by 120.54(7), Florida Statutes and 944.09(1)(A). This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in punishing the Petitioner for having contraband in his possession. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules and the IOP. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules or the IOP are unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rules and the IOP are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7190R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Legal Affairs, and the State Attorney of the Eighth Judicial Circuit, the Respondents in case number 91-7190R as Respondents and addresses his challenge to other rules, internal operating procedures and directives of the other named Respondents challenged in case number 91-7190R. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rules, the IOP or the other matters challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The licensee At all times material hereto, Respondent, Jill Sousa Barker, was licensed by Petitioner, Department of Insurance (Department), as a general lines agent. Such licensure dates to May 10, 1993, and, but for the pending action, Respondent has suffered no other complaint or disciplinary action. The violations On February 11, 1997, an Information was filed in the Circuit Court, Twentieth Judicial Circuit, Lee County, Florida, Case No. 97-0058CF, charging Respondent with two counts of trafficking in cocaine (28 grams or more), contrary to Section 893.135(1)(b), Florida Statutes, and one count of sale or delivery of cocaine, contrary to Section 893.13(1)(a), Florida Statutes. Specifically, the Information alleged that: Count 1 [Respondent] did unlawfully and knowingly sell, manufacture, or deliver a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about November 7, 1996 Count 2 [Respondent] did unlawfully and knowingly have in her actual or constructive possession, a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about January 8, 1997 Count 3 [Respondent] did unlawfully sell or deliver a controlled substance, to-wit: cocaine, on or about December 18, 1996 The offenses alleged in Counts 1 and 2 constituted the commission of a felony of the first degree, and the offense alleged in Count 3 constituted the commission of a felony of the second degree. On September 3, 1997, Respondent entered a plea of nolo contendere to Count 3, as charged, and a plea of nolo contendere to the lesser included offense (Counts 1 and 2) of sale and delivery of cocaine (contrary to Section 893.13(1)(a), Florida Statutes), a second degree felony.1 The court entered an order withholding adjudication of guilt on each count, placed Respondent on probation for a period of four years under the supervision of the Department of Corrections (with early termination after two years if in compliance with all terms and conditions imposed), and assessed a fine and costs totaling $561. Respondent successfully completed her probation within one year, and was granted early termination by the court on June 15, 1998. At no time did Respondent inform the Department in writing of having pled nolo contendere to the aforesaid felonies.2 Aggravating and mitigating factors Here, the seriousness of Respondent's criminal acts cannot be gainsaid, nor may they be casually dismissed (as counsel suggests in Respondent's Proposed Recommended Order at page 2) as "part of a sting operation and as such . . . a 'victimless' act." Rather, Respondent acted as a middleman on three occasions, purchased cocaine (up to one ounce) for a dealer (a "person involved in the regular purchase and sale of . . . cocaine") who she believed was otherwise unable to acquire the product, and for which service she was paid a fee ($300 to $500 for the one ounce transaction). That the cocaine was not sold or further distributed, since the dealer was (unbeknownst to Respondent) operating under cover as an informant for the police department, does not render the crime less offensive. Notwithstanding, Respondent has suffered and paid a criminal penalty for her conduct and has demonstrated, based on objective evidence of right conduct, that she is truly remorseful for her actions and that she is worthy of holding a position of trust and confidence. Consequently, although suspension may be mandatory for a violation of Subsection 626.611(14), Florida Statutes, as discussed infra, it will serve no useful purpose. Therefore, any suspension should be de minimus. In reaching the foregoing conclusion, it is observed that, while serious, the isolated events which gave rise to the criminal charges filed against Respondent do not fairly reflect her character. Rather, history reveals that Respondent, age 34 at the time of hearing (date of birth September 17, 1964), has been gainfully employed (at various times, in various capacities) in the insurance industry since age 18, and that she suffered a brief, abusive marriage in the late 1980s, which resulted in the birth of a son, Trent. When Trent was 10 months of age, Respondent left her abusive husband, and moved (from Miami, Florida) to North Carolina to reside with her sister. There, Respondent successfully gained licensure as a property and casualty agent, as well as a life and health agent, and was employed by State Farm. Respondent was then, and continues to be, the primary support for herself and her son, and she enjoys little or no assistance from her former husband. Respondent remained in North Carolina approximately two years, and then returned to Miami, Florida, where she was employed by the Simons and Rose Insurance Agency. Following Hurricane Andrew (August 24, 1992), and the loss of all her possessions, she moved to Fort Meyers, Florida, to reside with her brother. There, Respondent successfully completed the 240-hour course and examination to qualify for licensure in Florida, and on May 10, 1993, was licensed as a general lines agent. Following licensure, Respondent was employed by AAA Insurance for two and one-half years, and thereafter by Tim Shaw Insurance Group, Inc. Respondent was, and continues to be, a model employee, a heavy producer, and is highly regarded among those who know of her. Apart from her continued employment, and support and participation in her son's activities (school, karate, hockey, baseball, and Cub Scouts), Respondent has, since the incidents in question, also committed to regular attendance at Lighthouse Baptist Church. There she has also taught vacation bible school, and has sat as a member of the building committee, as well as the finance committee. Moreover, Respondent has continued to attend night school at Edison Community College, and expects to receive an associate degree (A.S.) in computer programming on December 10, 1999. In all, Respondent has evidenced admirable traits, including resilience, tenacity, and character, which should not be overlooked or ignored because of the isolated incident in question. Given those traits, as well as her evident remorse, there is no reason to believe Respondent would engage in any further misconduct. Moreover, Respondent is painfully aware that, absent licensure, she would lose the means to support her family, and would most likely lose her home and the opportunity to complete her college program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds the Respondent guilty of violating the provisions of Subsections 626.611(14) and 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating the provisions of Subsection 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. All charges that Respondent's conduct also violated the provisions of Subsections 626.611(1), (7), or (13), and 626.621(2), Florida Statutes, should be dismissed. It is further RECOMMENDED that, as a penalty for such violations, Respondent's license be suspended for one day, followed by a one-year term of probation. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 9th day of September, 1999.
Findings Of Fact The parties stipulated to the following facts: The Petitioner, Dennis R. Cookish, is an inmate currently incarcerated at Hendry Correctional Institution, Route 2, Box 13-A, Immokalee, Florida 33934. His inmate number is 073819. The Respondent, Florida Parole and Probation Commission, is located at 1309 Winewood Boulevard, Bldg. 6, Tallahassee, Florida 32301. The Respondent is responsible for establishing presumptive parole release dates for all prisoners in the custody of the State of Florida who meet the requirements of 947.16, Florida Statutes. Petitioner met all of the requirements of 947.16, Florida Statutes, and was entitled to a PPRD initial interview on March 4, 1981. Petitioner was interviewed March 4, 1981, for the purpose of setting his PPRD. By action of the Respondent on March 25, 1981, Petitioner's presumptive parole release date was established. That date was set at November 27, 1984. Petitioner did not request administrative review of his presumptive parole release date pursuant to 947.173, Florida Statutes. The Respondent Commission is required under Section 947.16 and 947.172, Florida Statutes, to provide Petitioner with a presumptive parole release date. Respondent Commission is required to compute the presumptive parole release date according to Objective Parole Guidelines, under Section 947.165, Florida Statutes, (1979). Respondent Commission may use aggravating or mitigating circumstances in determining the presumptive parole release date but they must not be duplicative of the severity of offense behavior or the salient factor score pursuant to Sections 947.165(1), 947.172(2), Florida Statutes, (1979). The Commission was delegated rule making power via Section 947.07, Florida Statutes (1979). The Respondent Commission developed parole guidelines which became effective March 20, 1979. The guidelines are contained in Rule 23-19, Florida Administrative Code. The aggravation which is the subject of the instant challenge is contained in Rule 23-19.01(5), Florida Administrative Code. The Petitioner was convicted of grand theft after trust on February 26, 1980, of a second count of grand theft after trust on February 29, 1980, of uttering a forged instrument on January 22, 1980, of criminal attempt (attempted robbery) on April 14, 1980, and of uttering a forged instrument on June 16, 1980; and sentenced to concurrent terms of 3 years, 3 years, 2 years, 5 years, and 3 years, respectively, and followed by 2 years probation. The depositions of David Mack and Steve Seliger are stipulated and entered into evidence as their testimony in this proceeding. The following findings are made from the evidence presented at the hearing: As a result of passage of the "Objective Parole Guidelines Act of 1978," Respondent was required to develop objective parole criteria pursuant to the Act by January 1, 1979. The Florida Research Center was hired under a Federal grant to devise such criteria. The purpose of the project was to fulfill the legislative purpose of developing objective parole guidelines under acceptable research methods to be based on the seriousness of the offense and the likelihood of favorable parole outcome. The Florida Research Center developed the required data and methods after studying the procedures followed in other states, current release data, scaling techniques, and the like. Respondent Parole and Probation Commission and its staff contributed extensively to the study. As devised, the rules promulgated as Chapter 23-19, Florida Administrative Code, provide a method of arriving at a "salient factor" score which serves as an actuarial parole prognosis aid. It is derived by considering such matters as prior convictions and incarcerations, total time served, age at first commitment and prior parole revocations or escapes. The other major facet in determining a presumptive parole release date is an "offense severity rating" which reflects the present offense of which the inmate was convicted. Offenses are characterized according to the type of offense in nine categories ranging from "Low" to "Greatest (Most Serious IV)". Each category reflects four "matrix time frames" which are the minimum and maximum number of months to be served before parole. The particular time frame for a particular offense is based on the offender's salient factor score and represents parole prognosis. (Testimony of Farris, Exhibit 20) Respondent's Rule 23-19.01(5), F.A.C., provides that if the present offense of conviction involves multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors to be applied to both consecutive and concurrent sentences. Respondent's purpose in permitting multiple offenses to be used as aggravating factors to increase the parole matrix time frame was to recognize the proposition that there is a relationship between the numbers and types of criminal behavior which affects parole prognosis. Respondent's Rule 23-19.03, F.A.C., provides other examples of situations in which the parole decision may be either above or below the matrix time frame based upon aggravating and mitigating circumstances. In determining whether to consider multiple offenses as aggravating factors, Respondent's hearing examiners review the inmate's complete file, including presentence reports, the circumstances of the offenses, psychological reports, and his prior record to determine whether such offenses should be a basis for adding additional months to the matrix time frame when arriving at a presumptive parole release date. Each such case is considered on its individual circumstances to arrive at a subjective determination of parole risk. Aggravating factors are probably not applied in 25 to 40 percent of the cases. These normally involve first offenders with multiple offenses arising out of the same incident or which occurred close in time. In the opinion of experts at Respondent's hearing examiner and field and supervisory levels, Rule 23- 19.01(5), F.A.C., relating to aggravating factors is reasonably related to the question of parole prognosis. (Testimony of L'Hommedieu, Farris, Exhibits 9, 20) The Respondent's hearing examiners who interviewed Petitioner Cookish on March 4, 1981, to arrive at his preliminary presumptive parole release date, computed a salient factor score of 5 based on prior convictions and incarcerations, total time served in years, and age at first commitment. Utilizing the conviction for criminal attempt (attempted robbery) as the most serious of the offenses for which the Petitioner was serving a concurrent sentence, they arrived at an offense characteristic of Moderate which provided for a matrix time range of 14 to 19 months. They then considered three of four other offenses for which he had been sentenced concurrently and applied the maximum number of months according to the type of offense as aggravating circumstances for each offense for a total of 51 months. This period was added to the maximum matrix time range of 19 months for a total of 70 months to be served prior to parole. Petitioner's incarceration commenced on January 31, 1979. By adding 70 months to that commencement date, the examiners recommended a presumptive parole release date of November 27, 1984. The Respondent adopted as its own the examiners' presumptive parole release date at a commission meeting on March 25, 1981. (Testimony of Petitioner, Exhibits 4-8, 10-11) Kenneth Whittington is an inmate at the Hendry Correctional Institution who received a recommended presumptive parole release date of January 4, 1983, after being interviewed by one of Respondent's hearing examiner panels. The date was based on a salient factor score of 10 which included one point for a prior parole revocation, and an offense characteristic of Moderate based on a conviction of burglary of a dwelling which placed him in the 18-33 month matrix time range. The total time recommended to be served was 33 months. He was not serving a concurrent or consecutive sentence. (Testimony of Whittington, Exhibits 12-14) Jimmy Lee Clark is an inmate at the Hendry Correctional Institution. He is serving three concurrent sentences for battery of a law enforcement officer, resisting arrest with violence, aggravated assault, and aggravated battery. He was on parole in 1977 for possession of heroin, but parole was revoked. He was on probation for aggravated battery in 1979 which was also revoked and he was thereafter sentenced. He was interviewed by Respondent's hearing examiner panel in March, 1981 to determine a presumptive parole release date. On March 24, 1981, Respondent commission concurred with the hearing examiner panel's recommendations and set his presumptive release date at September 11, 1984. The offenses for which he was concurrently sentenced were not used as aggravating factors in arriving at the presumptive date. The sentence which he is currently serving was imposed in August 1980 for a period of five years. (Testimony of Clark, Exhibits 15-18), Stewart Strickland is an inmate at the Hendry Correctional Institution currently serving a total of 8 years confinement on 6 concurrent and 2 consecutive sentences. He has had about 33 prior arrests primarily for check offenses and has spent approximately 6 years in prison. He was 18 years old at the commission of his first offense. His current convictions involve worthless check offenses and grand theft. One of his prior offenses was a federal charge involving violation of the Gun Control Act. He has had probation revoked several times in the past. He was once on parole but did not complete the same because of conviction on a bad check charge. He was interviewed by Respondent's hearing examiner panel in March 1980 to establish a presumptive parole release date. He received a salient factor score of 7 based on prior convictions, total time served, prior incarcerations, and age at first commitment. His offense characteristic was deemed Moderate for the offense of grand theft which placed him in a matrix time frame of 18 to 33 months confinement. Four of his 7 remaining concurrent offenses were used as aggravating circumstances totalling 72 months which, added to the 33 months maximum of the matrix time range, resulted in 105 months as the total time recommended by the examiner. His presumptive parole release date was established as July 18, 1987. (Testimony of Strickland, Exhibit l9)
The Issue Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner is presently incarcerated at Sumter Correctional Institution near Bushnell, Florida. Sumter Correctional Institution is a prison maintained by the Florida Department of Corrections. Petitioner was convicted for two separate robbery offenses based upon guilty pleas. He was sentenced to a prison term of ten years in connection with each conviction, the sentences to run concurrently. Petitioner is presently incarcerated based upon these convictions. Petitioner was interviewed by an Examiner of the Florida Parole and Probation Commission for the purpose of establishing a recommended presumptive parole release date on February 26, 1981. Under rules of the Parole and Probation Commission then in effect, the Examiner was to consider the gravity of the offense for which the Petitioner was sentenced, establish a "salient factor score" and consider any aggravating or mitigating circumstances. The Examiner classified the offense as "high-robbery" and set the salient factor score at "1." Under Commission rules then in effect, the guidelines for a time range ("matrix time range") for that offense characteristic and salient factor score was fourteen to nineteen months. The Examiner recommended setting the presumptive parole release date at the longest period within the time range (nineteen months) and additionally recommended that several aggravating circumstances be considered. These circumstances were the existence of a concurrent sentence for robbery for which the Examiner recommended an additional nineteen months, the fact that a gun was used in one of the robberies for which the Examiner recommended an additional six months, and the fact that a knife was used in the other for which the Examiner recommended an additional six months. The Examiner thus recommended that the Petitioner serve a total of fifty months in prison and that his presumptive parole release date be set at March 13, 1984. Petitioner requested review of this recommendation before the Parole and Probation Commission. The Commission took final action on the review request on April 1, 1981, and affirmed the recommendation. Commission Rule 23-19.01(5), Florida Administrative Code, has been amended since it was applied to the Petitioner. The rule as it existed when the Petitioner's presumptive parole release date was established provided: If present offense of conviction involved multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors. This shall be applied to both consecutive and con- current sentences. This rule continues to substantially affect Petitioner since it provided the basis for the setting of his presumptive parole release date. In adopting this rule, the Commission sought to develop criteria to predict the likelihood of successful parole. The presence of multiple sentences for multiple criminal behavior was considered an important factor in determining the likelihood of a successful parole experience.
