Findings Of Fact In his application for licensure dated September 6, 1990, Petitioner answered question 7 pertaining to conviction of a crime in the affirmative, and submitted an attached list showing: Hammond, Louisiana, February 1977. Possession of marijuana with intent to distribute. Guilty plea, one year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana: Guilty plea. One year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana and conspiracy to possess marijuana with intent to distribute. Ten year sentence to be served concurrently. Tallahassee, Florida, September 11, 1986. Failure to appear. Guilty plea. Five year sentence, to be served consecutively. Tallahassee, Florida, December 19, 1986. Possession of marijuana with intent to distribute. Guilty plea. Eight year concurrent sentence. I served a total of 61 months in federal prison of an aggregate 15 year sentence from March 27, 1986 to August 3, 1990. Petitioner's FBI rap sheet shows: Arrested 2/22/77 arrested and charged in Louisiana with possession of marijuana with intent to distribute. Arrested 11/4/77 Pensacola on charge of conspiracy to possess with intent to distribute marijuana. Sentence 60 months confinement, $15,000 fine. Arrested 3/27/86 on charge of failure to appear. Arrested 5/26/86 on charge of unlawful possession of marijuana. Sentence one year confinement. Arrested 11/21/86 on charge of possession with intent to distribute marijuana. Sentence 8 year confinement. Following his conviction on November 30, 1977, Petitioner was released on bail and failed to appear for sentencing. He remained a fugitive until he was apprehended on 3/27/86 and incarcerated in a federal correction institution. The 6/25/86 entry on the rap sheet relates to the 1977 convictions and five year sentence Petitioner failed to serve. Petitioner correctly included all convictions on his application for licensure. While serving his 15 year accumulated sentence, Petitioner decided to turn his life around. During his last three years in prison, Petitioner took college courses and correspondence courses in real estate (Exhibit 2). Petitioner received a three month credit on his presumptive parole date for superior program achievement; specifically: completed vocational training in electronics; completed an extension course in real estate appraisal; and completed an associate degree in real estate appraisal. Petitioner's sister, who testified in these proceedings, is a real estate broker and encouraged Petitioner to study for and enter the real estate field. While in federal prison, Petitioner received a Jaycees Presidential Award of Honor in June 1988 in acknowledgment of his support in community fund raising projects. Subsequent to his release from prison on August 3, 1990, Petitioner worked as an assistant in two real estate offices, served as a volunteer handler of search dogs used in law enforcement and search and rescue missions, worked with the guardian ad litem program and with project PET where he takes dogs into nursing homes to serve as temporary pets for elderly patients. Although Respondent is on five years probation and will be eligible for release from parole in 1993, he has complied with all terms of his parole, including the monthly payments on the fine assessed against him. Petitioner exhibited a sincere interest in working in the real estate field and has at least two real estate firms willing to employ him as a salesman once he is licensed.
Findings Of Fact The Respondent, Florida Parole and Probation Commission, adopted revised rules of practice and procedure which became effective on September 10, 1981. Among these is Rule 23-21.09, Florida Administrative Code, which establishes "matrix time ranges" that are used in determining presumptive parole release dates for persons who are serving prison terms. In determining presumptive parole release dates, the Respondent's rules require that a "salient factor score" be determined based upon such factors as the number of prior criminal convictions, the number of prior incarcerations, total time served in prisons, the inmate's age at the time of the offense which led to the first incarceration, the number of probation or parole revocations, the number of prior escape convictions, and whether burglary or breaking and entering is the present offense of conviction. The degree or severity of the present offense of conviction is then determined. The Respondent's Rule 23-21.09 sets guidelines for time ranges for presumptive parole release dates depending upon the severity of the present offense of conviction and the salient factor score. The more severe the present offense of conviction, the longer will be the period before the presumptive parole release date. Similarly, given the severity of the offense, the higher the salient factor score the longer will be the period before the presumptive parole release date. The rule replaced a rule which set different matrix time ranges. The new rule generally sets longer time ranges, but this is not uniformly true. The Petitioner, Seimore Keith, is an inmate presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a facility maintained by the Florida Department of Corrections. Petitioner Keith was convicted of grand theft in July, 1980, and was sentenced to serve five years in prison. The conviction was the result of a guilty plea which was entered in accordance with a plea bargain. During plea negotiations, Petitioner Keith was advised that his presumptive parole release date under Florida Parole and Probation Commission rules would require that he serve no more than 25 months in prison. At the time that Petitioner Keith's presumptive parole release date was set by the Respondent, the new Rule 23-21.09 had come into effect, and the Petitioner's presumptive parole release date was set to require that he serve 32 months in prison. The Petitioner, Ronnie McKane, is presently incarcerated at Polk Correctional Institution. He was convicted of the offense of armed robbery in February, 1981. Under rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Petitioner McKane's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by Respondent in setting McKane's presumptive parole release date. The Petitioner, Daniel P. Hull, is presently incarcerated at Polk Correctional Institution. He was convicted in September, 1971, of the offense of robbery and sentenced to serve ten years in prison. He was paroled in 1974, but was reincarcerated as a result of a parole violation in 1976. In 1977 he escaped, and was recaptured in January, 1981. On June 1, 1961, Petitioner Hull was convicted of the offense of escape and sentenced to serve nine months. Under the rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Hull's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rules were applied by Respondent in setting Hull's presumptive parole release date, and it has been set subsequent to the expiration of his sentence. Hull will therefore be released when his sentence expires in March, 1982. The Petitioner, Douglas L. Adams, was convicted of the offenses of possession of marijuana and uttering a forged instrument, and sentenced in February, 1981, to two consecutive five-year sentences. Under the rules in effect when Adams was sentenced, which was prior to the adoption of Rule 23- 21.09, Adams' presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by the Respondent in setting Adams' presumptive parole release date. During 1980, the Respondent directed its staff to begin considering proposed changes to its rules of practice and procedure. Various proposals were considered, and by September, 1980, a proposed rule package had been developed. The Respondent directed its staff to submit the proposed rule package to the Governor and members of the Cabinet, various pertinent legislators, county and circuit judges, prosecutors and public defenders, superintendents of each prison in the State, and to members of the Supreme Court and the district courts. The Commission opted to conduct various workshops throughout the State, and to invite all interested persons to share their input. Notices of the workshops were published in the Florida Administrative Weekly. The workshops were conducted, and the Commission commenced formal rule-making proceedings. Notice of rulemaking was published in the Florida Administrative Weekly, and hearings were scheduled. Notice of the formal rulemaking proceedings was also published in the St. Petersburg Times, the Pensacola Journal, the Tallahassee Democrat, the Orlando Sentinel-Star, and the Florida Times-Union. Persons who had requested specific notification were provided it. In response to this notice, the Respondent received considerable written input, and oral presentations were made at hearings that were conducted. The final hearing in the rule-making proceeding was conducted on June 19, 1981, and the rules, including Rule 23- 21.09, were thereafter adopted effective September 10, 1981. Notice of the proposed rule changes and of the formal rulemaking proceeding was not specifically disseminated to inmates at Florida's prisons. The proposed rules were for- warded to the superintendent of each facility. At some of the institutions the proposed rules were apparently posted. All persons who requested copies of the proposed rules from the Florida Parole and Probation Commission were provided them. Numerous prisoners and organizations that represent prisoners made input during the various states of the rulemaking proceeding. None of the Petitioners in this matter were specifically noticed of the rulemaking proceeding. One of the Petitioners had heard that rules were being proposed, and requested copies of them from members of the Legislature or from Department of Corrections personnel. None of the Petitioners requested copies of the proposed rules from the Respondent or anyone connected with the Respondent.
Findings Of Fact Petitioners, Willie Towns and John H. Smith, are both incarcerated in the State of Florida at the Lawtey Correctional Institution. On October 12, 1984, Respondent, DOC, caused to be published in the Florida Administrative Weekly, Vol 10, No 41, a copy of Emergency Rule 33ER84-6, dealing with the freezing of incentive gain time. This emergency rule was shown to have become effective when filed with the Florida Department of State on October 4, 1984. The implementation of this rule as an emergency rule was based on a finding by Respondent that there was an immediate danger to the public health, safety, or welfare requiring it. The DOC's rationale for this finding was that a need existed for Respondent to have a definite release date set to arrange for notification to law enforcement officials from other jurisdictions who had filed detainers against inmates of their impending release sufficiently in advance of that release date so that those agencies could make arrangements for assuming custody without permitting the inmates to be released into society creating a danger to the public. The rule, in summary, provides that an inmate's release date will be frozen on the 12th day of the month preceding the month of his release and that the inmate will not benefit during the frozen period from any further incentive gain time adjustments to his release date. Emergency Rule 33ER84-6 is identical in language and effect to Emergency Rule 33ER84-5 which was published in the Florida Administrative Weekly, Vol 10, No 28, on July 13, 1984, which became effective on July 2, 1984, and which expired on September 29, 1984, after 90 days. On or about December 6, 1984, Petitioners filed the Petition for Permanent Injunction to Stop the Freezing of Earned Gain Time. The Petition has five major thrusts. The first is that since the Respondent showed no need for an emergency rule, the rule implemented in that form is invalid. The second is that both this rule and its identical predecessor violate both State and Federal ex post facto principles. The third is that both the instant rule and its predecessor are being unlawfully enforced at LCI. The fourth is that in the promulgation of a rule such as this, the agency is required to publish an economic impact statement which was not done here. This particular issue was resolved adversely to the Petitioners at the telephone conference motion hearing held on December 18, 1984. The fifth is that the instant rule is an unlawful extension of its identical predecessor and its promulgation is an unlawful attempt to circumvent the provisions of Section 120.54 (9)(e), Florida Statutes (1983). Rule 33ER84-6, which had an effective date of October 4, 1984, expired on January 2, 1985. Petitioner Towns' tentative release date is March 26, 1986. Petitioner Smith's tentative release date is March 6, 1986. Neither Petitioner would be affected by the emergency rule since their incentive gain time would not be subject to being frozen until sometime in February, 1986.
The Issue The issues are whether, under section 440.107, Florida Statutes, Petitioner may calculate a penalty assessment for a failure to secure the payment of workers' compensation for one day as though the failure persisted over two years and whether Petitioner may calculate a penalty assessment based on double the statewide average weekly wage (AWW) when the lone uncovered employee earned $10 per hour.
Findings Of Fact Respondent was incorporated in 2008 by Ineido Soler, Sr., and his son, Ineido Soler, Jr. Since the corporation began operations, the wife of Mr. Soler, Jr., Idalmis Pedrero, has served as the office manager of this family-owned company. At all material times, Respondent has contracted with a personnel leasing company to handle employee matters, such as securing the payment of workers' compensation. Ms. Pedrero's responsibilities include informing the employee leasing company of new hires, so the company can obtain workers' compensation coverage, which typically starts the day following notification. On the afternoon of November 22, 2015, Mr. Soler, Jr., telephoned his wife and told her that he and his father had hired, at the rate of $10 per hour, a new employee, Geony Borrego Lee, who would start work the following morning. Customarily, Ms. Pedrero would immediately inform the employee leasing company. However, Ms. Pedrero was working at home because, six days earlier, she had delivered a baby by caesarian section, and she was still recuperating and tending to her newborn. A fatigued Ms. Pedrero did not notify the employee leasing company that day of the new hire. Late the next morning, Ms. Pedrero was awakened by a call from her husband, who asked her if she had faxed the necessary information to the employee leasing company. Ms. Pedrero admitted that she had not done so, but would do so right away. She faxed the information immediately, so that the employee leasing company could add Mr. Lee to the workers' compensation policy, effective the next day, November 24. Uncovered for November 23, Mr. Lee joined three other employees of Respondent and performed roofing work at a worksite. Late in the afternoon of November 23, one of Petitioner's investigators conducted a random inspection of Respondent's worksite and determined that Respondent had secured the payment of workers' compensation for the three other employees, but not for Mr. Lee. The investigator issued an SWO on the day of the inspection, November 23. The SWO contains three parts. First, the SWO orders Respondent to cease work anywhere in the state of Florida. Second, the SWO includes an Order of Penalty Assessment, which does not contain a specific penalty, but instead sets forth the formula by which Petitioner determines the amount of the penalty to assess. Tracking the statute discussed below, the formula included in the SWO is two times the premium that the employer would have paid when applying approved manual rates to the employer's payroll "during periods for which it has failed to secure the payment of compensation within the preceding 2-year period." Third, the SWO includes a Notice of Rights, which advises Respondent that it may request a chapter 120 hearing. On November 24, Petitioner released the SWO after Respondent had secured the payment of workers' compensation for Mr. Lee. On November 25, the investigator hand delivered to Respondent a Request for Production of Business Records for Penalty Assessment Calculation (Request). The Request covers November 24, 2013, through November 23, 2015, and demands records in eight categories: identification of employer, occupational licenses, payroll documents, account documents, disbursements, contracts for work, identification of subcontractors, and documentation of subcontractors' workers' compensation coverage. The Request identifies "payroll documents" as: all documents that reflect the payroll of the employer . . . including . . . time sheets, time cards, attendance records, earning records, check stubs and payroll summaries for both individual employees and aggregate records; [and] federal income tax documents and other documents reflecting the . . . remuneration paid or payable to each employee . . . . The Request adds: The employer may present for consideration in lieu of the requested records, proof of compliance with F.S. 440 by a workers' compensation policy or coverage through employee leasing for all periods of this request where such coverage existed. If the proof of compliance is verified by the Department the requested records for that time period will not be required. The Request warns: If the employer fails to provide the required business records sufficient to enable the . . . Division of Workers' Compensation to determine the employer's payroll for the period requested for the calculation of the penalty provided in section 440.107(7)(d), F.S., the imputed weekly payroll for each employee shall be the statewide average weekly wage as defined in section 440.12(2), F.S., multiplied by 2. The Department shall impute the employer's payroll at any time after ten, but before the expiration of twenty eight business days after receipt by the employer of [the Request]. (FAC 69L-6.028) . . . . On December 11, 2015, Respondent provided the following documents to Petitioner: itemized invoices, including for workers' compensation premiums, from the employee leasing company to Respondent and checks confirming payment, but the invoices and checks are from December 2011; an employee leasing agreement signed by Respondent on August 1, 2014, and signed by the employee leasing company on August 5, 2014; an employee leasing application for Mr. Lee dated November 23, 2015, showing his date of birth as November 20, 1996, his hourly pay as $10, and his hire date as November 23, 2015; and an employee census dated December 1, 2015, showing, for each employee, a date of hire and, if applicable, date of termination. Partially compliant with the Request, this production omitted any documentation of workers' compensation coverage prior to August 1, 2014, and any documentation of payroll except for Mr. Lee's rate of pay. On December 14, 2015, Respondent filed with Petitioner its request for a chapter 120 hearing. On December 30, 2016, Petitioner issued an Amended Order of Penalty Assessment (Amended Assessment), which proposes to assess a penalty of $63,434.48. On the same date, Petitioner transmitted the file to DOAH. Petitioner issued a Second Amended Order of Penalty Assessment on February 16, 2016, which is mentioned in, but not attached to, the Prehearing Stipulation that was filed on April 26, 2016, but the second amended assessment reportedly leaves the assessed penalty unchanged from the Amended Assessment. In determining the penalty assessment, Petitioner assigned class code 5551 from the National Council on Compensation Insurance because Mr. Lee was performing roofing work; determined that the entire two-year period covered in the Request was applicable; identified the AWW as $841.57 based on information provided by the Florida Department of Economic Opportunity for all employers subject to the Florida Reemployment Assistance Program Law, sections 443.01 et seq., Florida Statutes, for the four calendar quarters ending June 30, 2014; applied the appropriate manual rates for class code 5551 to $841.57, doubled, and divided the result by 100--all of which yielded a result of $31,717.24, which, doubled, results in a total penalty assessment of $63,434.48. There is no dispute that the classification code for Mr. Lee is code 5551, the AWW is $841.57, and the manual rates are 18.03 as of July 1, 2013, 18.62 as of January 1, 2014, and 17.48 as of January 1, 2015. Because Petitioner determined that Respondent had failed to provide sufficient evidence of its payroll, Petitioner calculated the penalty assessment by using the AWW of $841.57, doubled, instead of Mr. Lee's actual rate of $10 per hour. Petitioner's calculations are mathematically correct. For the 5.27 weeks of 2013, the penalty assessment is $3198.58 based on multiplying the AWW, doubled, by the manual rate of 18.03 divided by 100 multiplied by 2 and multiplied by 5.27. For the 52 weeks of 2014, the penalty assessment is $32,593.67 based on multiplying the AWW, doubled, by the manual rate of 18.62 divided by 100 multiplied by 2 and multiplied by 52. For the 46.44 weeks of 2015, the penalty assessment is $27,326.48 based on multiplying the AWW, doubled, by the manual rate of 17.48 divided by 100 multiplied by 2 and multiplied by 46.44. Adding these sums yields a total penalty assessment of $63,118.73, which approximates Petitioner's penalty assessment calculation of $63,434.48. (Mistranscription of difficult-to- read manual rates or a different rule for handling partial weeks may account for the small difference.) Respondent challenges two factors in the imputation formula: the two-year period of noncompliance for Mr. Lee instead of one day's noncompliance and the AWW, doubled, instead of Mr. Lee's $10 per hour rate of pay. Underscoring the differences between the two-year period of noncompliance and double the AWW and the actual period of noncompliance and Mr. Lee's real pay rate, at the start of the two-year period, Mr. Lee was three days past his 16th birthday and residing in Cuba, and Mr. Lee continues to earn $10 per hour as of the date of the hearing. The impact of Petitioner's use of the two-year period of noncompliance and double the AWW is significant. If the calculation were based on a single day, rather than two years, the assessed penalty would be less than the statutory minimum of $1000, which is described below, even if double the AWW were used. One day is 0.14 weeks, so the penalty assessment would be $82.38 based on multiplying the AWW, doubled, by the manual rate of 17.48 divided by 100 multiplied by 2 and multiplied by 0.14. If the calculation were based on the entire two years, rather than a single day, the assessed penalty would be about one-quarter of the proposed assessed penalty, if Mr. Lee's actual weekly rate of pay were used instead of double the AWW. Substituting $400 for twice the AWW in the calculations set forth in paragraph 15 above, the penalty would be $760.14 for 2013, $7746.92 for 2014, and $6494.17 for 2015 for a total of $15,001.23. Explaining why Petitioner treated one day of noncompliance as two years of noncompliance, one of Petitioner's witnesses referred to Mr. Lee as a "placeholder" because the real focus of the imputation formula is the employer. The same witness characterized the imputation formula as a "legal fiction," implying that the formula obviously and, in this case, dramatically departs from the much-smaller penalty that would result from calculating exactly how much premium that Respondent avoided by not covering the modestly paid Mr. Lee on his first day of work. Regardless of how Petitioner characterizes the imputation formula, the statutory mandate, as discussed below, is to determine the "periods" during which Respondent failed to secure workers' compensation insurance within the two-year period covered by the Request. The focus is necessarily on the employee found by the investigator to be uncovered and any other uncovered employees. Petitioner must calculate a penalty based on how long the employee found by the investigator on his inspection has been uncovered, determining how many other employees, if any, in the preceding two years have been uncovered, and calculating a penalty based on how long they were uncovered. There is evidence of one or two gaps in coverage during the relevant two years, but Petitioner has failed to prove such gaps by clear and convincing evidence. One of Petitioner's witnesses testified to a gap of one month "probably" from late January to late February 2015. This witness relied on Petitioner Exhibit 2, but it is completely illegible. Ms. Pedrero testified that Respondent had workers' compensation coverage since 2011, except for a gap, which she thought had occurred prior to August 2014, which is the start date of the current policy. This conflicting evidence does not establish by clear and convincing evidence any gap, and, even if a gap had been proved, no evidence establishes the number of uncovered employees, if any, during such a gap, nor would such a gap justify enlarging the period of noncompliance for Mr. Lee. Ms. Pedrero testified that her mother-in-law, Teresa Marquez cleaned the office and warehouse on an occasional basis, last having worked sometime in 2015. Respondent never secured workers' compensation coverage for Ms. Marquez, but she did no roofing work and appears to have been a casual worker, so her periods of employment during the two-year period covered by the Request would not constitute additional periods for which Respondent failed to secure workers' compensation insurance. Based on the foregoing, Petitioner has proved by clear and convincing evidence only a single day of noncompliance, November 23, concerning one employee, Mr. Lee, within the relevant two-year period for the purpose of calculating the penalty assessment. Likewise, Petitioner has proved by clear and convincing evidence a rate of pay of only $10 per hour for the purpose of calculating the penalty assessment. At no time has Respondent provided payroll records of all its employees for November 23, 2015. Respondent Exhibit E covers payroll for Respondent's employees for a two-week period commencing shortly after November 23, 2015. But the evidence establishes that Mr. Lee's rate of pay was $80 for the day, which, as discussed below, rebuts the statutory presumption of double the AWW.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order determining that Respondent has failed to secure the payment of workers' compensation for one employee for one day within the two-year period covered by the Request and imposing an administrative penalty of $1000. DONE AND ENTERED this 19th day of July, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2016. COPIES FURNISHED: Jonathan Anthony Martin, Esquire Trevor S. Suter, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Daniel R. Vega, Esquire Robert Paul Washington, Esquire Taylor Espino Vega & Touron, P.A. 2555 Ponce De Leon Boulevard, Suite 220 Coral Gables, Florida 33134 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Whether Rule 33-3.006(1)(c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact Standing. The Petitioner, Jeffrey Scott Gamble, is an inmate in the custody of the Respondent, the Department of Corrections, at Marion Correctional Institution. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner's AM/FM radio was confiscated by the Respondent as contraband because the radio had been altered by the addition of an AC cord and a switch. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing the rights of inmates, the rules of inmate conduct, the operation and management of correctional institutions and all other aspects of the operation of the prison system in Florida. Rule 33-3.0045, Florida Administrative Code. Rule 33-3.006, Florida Administrative Code, defines what constitutes "contraband" in a prison, prohibits the possession of contraband by inmates and provides the manner in which contraband will be disposed of. Rule 33-3.006(1)(c), Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), defines "contraband" to include, the following: (c) Any item or article which is altered from its original condition in such a way that it presents a threat to the security or order of the institution. The determination of whether an item constitutes "contraband" pursuant to the Challenged Rule is determined by correctional officers at each institution. The legislative authority cited for the Challenged Rule is Sections 944.09 and 945.215, Florida Statutes. The legislative provisions implemented by the Challenged Rule are Sections 944.47 and 945.215, Florida Statutes. The Petitioner's Challenge. The Petitioner has alleged that the Challenged Rule "is an invalid exercise of delegated legislative authority as it enlarges the specific provisions of law implemented [Section 120.52(8)(c), Florida Statutes], it contravenes the specific provisions of law implemented [Section 120.52(8)(c), Florida Statutes], and it fails to establish adequate standards for agency decision and/or vests unbridled discretion in the agency [Section 120.52(8)(d), Florida Statutes]." With regard to whether the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" found in Section 120.52(8)(c), Florida Statutes, the Petitioner has alleged that the Challenged Rule: . . . expands the definition of the word contraband and in so doing expands the items that are then subject to forfeiture beyond that authorized by the law implemented. 10. In the sections of Florida Statutes cited as the law implemented there is a definition for the word contraband. This definition is contained in Chapter [sic] 944.47 (1)(a), Florida Statutes. This definition does not support the view that the alteration of an item causes it to be contraband. Petitioner's Initial Complaint. With regard to whether the Challenged Rule comes within the definition of an "invalid exercise of delegated legislative authority" found in Section 120.52(8)(d), Florida Statutes, the Petitioner has alleged that the Challenged Rule: . . . is invalid because it has inadequate standards and/or vest the Respondent with unbridled discretion in deciding when an alteration presents a threat to the security or order of the institution. . . . The Respondent's Interpretation of the Challenged Rule. It is the position of the Respondent that any item in an inmate's possession which has been altered must be confiscated under the Challenged Rule. An item is "altered" when it is not in its original condition. It is the Respondent's position that any change in the original condition of an item or the item's use constitutes an alteration. It is the Respondent's position that any alteration to an item in an inmate's possession constitutes a threat to the order or security of the institution. It is the Respondent's position that the determination of whether an item that has been altered is a threat to the order or security of the institution is "only pertinent for the purpose of the disciplinary proceeding."
The Issue The issue for resolution in this proceeding is whether Petitioner, Marcus A. Patrick, should be granted an exemption from employment disqualification which would allow him to work in a position of special trust or responsibility with Respondent, Department of Juvenile Justice.
Findings Of Fact Petitioner, Marcus Patrick, resides in Orlando, Florida, and is attending college in the field of criminal justice/criminology. He anticipates that he will receive his Bachelor of Science degree from Florida A&M University in August 2000. In December 1998, during the process of applying for a position with a Department of Juvenile Justice (DJJ) facility in Longwood, Florida, Mr. Patrick filed the necessary forms for background screening. These included an affidavit of good moral character which he signed and had notarized on December 18, 1998. The affidavit states that Mr. Patrick has not been found guilty nor pled guilty or no contest, regardless of whether adjudication was imposed or withheld, of any of a series of offenses listed on the affidavit. The listed offenses included violations of Chapter 812, Florida Statutes, relating to theft, robbery, and related crimes. The statement on the affidavit form immediately above Mr. Patrick's signature provides: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Contrary to his affidavit, the background screening revealed certain offenses by Mr. Patrick. In 1990, while employed as a cashier at Wal-Mart, he passed store merchandise through the counter without scanning it, thus allowing his friends to obtain items without paying for them. Mr. Patrick and co-defendants entered a pre-trial intervention program and the case was dismissed with a nolle prosequi by the State Attorney on May 5, 1992. On February 3, 1997, Mr. Patrick pled nolo contendere to two counts of grand theft, a felony described in Section 812.014, Florida Statutes. He was placed on probation, was fined, and was ordered to make restitution. Adjudication was withheld. The date of the actual charge was October 6, 1996. When DJJ learned of the disqualifying offenses it offered Mr. Patrick an opportunity to explain them and to explain why he lied on the affidavit. In response, Mr. Patrick submitted documents explaining his criminal history and other documents relevant to his fitness for employment. He also submitted a revised affidavit. DJJ Inspector General Perry Turner denied Mr. Patrick's request for an exemption from disqualification on February 1, 1999. At that time Mr. Patrick was still on probation. Mr. Turner denied a second request in June 1999, when Mr. Patrick submitted evidence of his early termination from probation, but his felony (dating back to October 1996) was still within the three-year prohibition period. Mr. Turner denied Mr. Patrick's third request on December 14, 1999. It is this most recent denial that is the subject of this proceeding. Mr. Turner's final denial was based on the pattern of theft, the falsification of an affidavit, and the mere lapse of four years since the most recent offense. At the hearing Mr. Patrick admitted he falsified his affidavit but said that he was misled by his lawyer who he admits did not read the affidavit. Apparently the lawyer told him that he could answer "no" if the question asked whether he was convicted. That was not the question, and the affidavit form is quite clear that the questions also included pleas of guilty or no contest and circumstances where adjudication was withheld. Perhaps more troubling is the discrepancy between Mr. Patrick's explanation at hearing and his written explanation submitted to DJJ on January 22, 1999, regarding his 1996 grand theft offense. In 1996, Mr. Patrick was working at the Courtyard by Marriott in Tallahassee, Florida. In his 1999 version of the events, an acquaintance of his from Florida A&M University came to the hotel on several occasions allegedly to escape from his many girlfriends. The acquaintance would check in with a credit card and Mr. Patrick would check him in. The hotel policy was not to question why the name on the card did not match the reservation as long as the card cleared. The acquaintance was caught using bad cards and when it was discovered that Mr. Patrick had checked him in they both were in trouble. Mr. Patrick's version at the hearing in this case involved the use of a credit card that belonged to someone else, but Mr. Patrick would not charge the card. Instead, he took cash from the acquaintance in an amount less than the full hotel rate. The testimony is not clear whether Mr. Patrick pocketed all or just part of the cash. In his testimony on cross-examination Mr. Patrick said he thought he had given the whole story to DJJ earlier. Mr. Patrick is working again for Marriott, now in Orlando, Florida. He acknowledges that he made some bad decisions and he believes that his experience and commitment to avoid crime now would enable him to be an effective role model for the troubled youth with whom he so anxiously wants to work. Mr. Patrick worked in a juvenile residential program in Tallahassee, Florida, from April 1997 until December 1998, with promotions from counselor to treatment director to assistant program director. His letters of recommendation from staff at the program are highly laudatory of his character and his work. The record does not reveal how he eluded the screening process when he was hired or whether he was screened for that job, as he would have been on probation for his 1996 felony during that period. Mr. Patrick also has an excellent letter of recommendation from his pastor who has known him since 1996. This letter and those from his co-workers and supervisors do not acknowledge any criminal history, but the individuals may be ignorant of the history. The crimes themselves are of less consequence than Mr. Patrick's unwillingness to be fully candid. His training in criminal justice certainly has informed him of the solemnity of an affidavit. He should have known what a no contest plea is and should have been able to understand what he was required to disclose. He is 31 years old, and served in the Marine Corps for approximately 8 years, including Gulf War combat. He is very articulate and appears well-motivated in his pursuit of a career of working with problem youth, a career which does not promise great financial reward. Such a talented, earnest young man should not be forever precluded from working in the field in which he could succeed in helping others avoid the mistakes he has made. For now, however, it is impossible to find sufficient evidence of rehabilitation to assure those mistakes are truly behind him.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its final order denying Marcus A. Patrick's request for exemption. DONE AND ENTERED this 26th day of May, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 26th day of May, 2000. COPIES FURNISHED: Marcus A. Patrick 2734 Fireside Court Orlando, Florida 32839 Lynne T. Winston, Esquire Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Respondent assessed Petitioner for secure juvenile detention care for the 2007-2008 fiscal year in a manner that implements Section 985.686, Florida Statutes, 1 and Florida Administrative Code Chapter 63G-1.
Findings Of Fact The Department is the state agency responsible for administering the cost-sharing requirements of Section 985.686, Florida Statutes, regarding detention care provided for juveniles. Hillsborough County is not a "fiscally constrained county" as that term is defined in Section 985.686(2)(b), Florida Statutes. For the balance of this Recommended Order, the term "county" or "counties" will refer to counties that are not fiscally constrained. Section 985.686(1), Florida Statutes, provides that the "state and counties have a joint obligation, as provided in this section, to contribute to the financial support of the detention care provided for juveniles." Section 985.686(2)(a), Florida Statutes, defines "detention care," for purposes of this section, to mean "secure detention." 2/ Section 985.03(18)(a), Florida Statutes, defines "secure detention" to mean "temporary custody of the child while the child is under the physical restriction of a detention center or facility pending adjudication, disposition, or placement." Section 985.686(3), Florida Statutes, provides in relevant part that each county "shall pay the costs of providing detention care . . . for juveniles for the period of time prior to final court disposition. The Department shall develop an accounts payable system to allocate costs that are payable by the counties." In summary, Section 985.686, Florida Statutes, requires each non-fiscally restrained county to pay the costs associated with secure detention during predisposition care, and the Department to pay the costs of secure detention during post- disposition care.3/ Each year, the Legislature determines the total amount of the appropriation for juvenile detention care and assigns a portion of the total to be paid by the counties through a trust fund, and a portion to be paid by the Department through general revenue. Section 985.686(5), Florida Statutes, sets forth the general mechanism for this allocation process: Each county shall incorporate into its annual county budget sufficient funds to pay its costs of detention care for juveniles who reside in that county for the period of time prior to final court disposition. This amount shall be based upon the prior use of secure detention for juveniles who are residents of that county, as calculated by the department. Each county shall pay the estimated costs at the beginning of each month. Any difference between the estimated costs and actual costs shall be reconciled at the end of the state fiscal year.4/ In 2007, Hillsborough County filed with the Department a petition that would be referred to the Division of Administrative Hearings and assigned Case No. 07-4398. In that petition, Hillsborough County complained that the Department was improperly calculating the counties' share of secure detention costs. The Department was arriving at a per diem rate by dividing the total detention budget (both the state's general revenue share and the counties' trust fund share) by the total number of predisposition and post-disposition days. Thus, the calculated per diem rate for the Department and the counties was the same. Hillsborough County argued that this methodology was inconsistent with both Section 985.686, Florida Statutes, and Florida Administrative Code Chapter 63G-1, because those provisions require that only the counties' share of the budget and detention days be used in calculating the counties' costs. Administrative Law Judge Daniel Manry agreed with Hillsborough County that the Department's methodology conflicted with Florida Administrative Code Rule 63G-1.004, and recommended that the Department calculate the costs of predisposition care in Hillsborough County using the methodology prescribed by rule. Hillsborough County v. Department of Juvenile Justice, Case No. 07-4398 (DOAH March 7, 2008). In a Final Order entered on June 4, 2008, the Department adopted Judge Manry's recommendation in all significant respects. In his Recommended Order, Judge Manry compared the actual calculation performed by the Department, which employed the total appropriation of $125,327,667.00, to the calculation required by Florida Administrative Code Rule 63G-1.004, which would have employed the amount appropriated for the counties' trust fund, $101,628,064.00. Hillsborough County was allocated 47,714 utilization days out of a total of 579,409 utilization days allocated to all counties, or 8.234 percent of the total. Multiplying the counties' trust fund total by the percentage of days allocated to Hillsborough County, in accordance with the rule, would have derived a gross assessment of $8,368,054.79. The Department deviated from the rule by defining the cost of detention to include the total appropriation, including the amount allocable to fiscally constrained counties and to the Department for post-disposition detention care, and dividing that number by the total number of utilization days (predisposition and post-disposition) to derive a per diem rate of $176.70 for all detention care. The Department then multiplied the per diem rate times the 47,714 days allocated to Hillsborough County to derive a gross assessment of $8,400,165.73 for Hillsborough County. Judge Manry recommended that the Department follow the rule and impose the "authorized" gross assessment of $8,368,054.79, rather than the higher number derived by deviating from the rule. The Department accepted Judge Manry's recommendation in its Final Order, albeit with a correction in rounding method that resulted in an estimated assessment of $8,369,013.00 for the 2007-2008 fiscal year. In light of the decision in Case No. 07-4398,5/ the Department followed the procedure set forth in Florida Administrative Code Chapter 63G-1 to arrive at a final reconciled assessment for the 2007-2008 fiscal year of $7,971,227.00, issued on January 30, 2009. Because Hillsborough County had paid estimated assessments of $8,431,267.00, the county was due a credit of $460,039.83.6/ The Department ceased the calculation of a per diem rate and confined its calculation to the predisposition costs and predisposition utilization days, i.e., those costs and days attributable solely to the counties. In the instant case, Hillsborough County argues that the Department should not be allowed to adjust the per diem rate that it established at the outset of the 2007-2008 fiscal year. The per diem rate of $176.70 should be applied to the actual number of predisposition days attributed to Hillsborough County, 37,528 as of January 30, 2009, for a final assessment of $6,631,197.60.7/ In contrast, Hillsborough County's actual year end cost of $7,971,227.00, divided by 37,528 days, would derive a per diem rate of $212.41. Hillsborough County argues that there is no merit or equity in this sharp rise in its per diem rate, despite its having more than 13,000 fewer actual utilization days than was estimated at the beginning of the year. Hillsborough County also argues that there is no merit in the drastically reduced per diem rate enjoyed by the Department due to its mid-year adjustment in the method of calculating costs. Hillsborough County's argument ignores the fact that the Department's mid-year adjustment in methodology was prompted by Hillsborough County's own successful attack on the methodology that derived the $176.70 per diem in the first place. As Hillsborough County itself successfully argued, the $176.70 per diem rate was in derogation of Florida Administrative Code Rule 63G-1.004, because it included costs not attributable to the counties. Hillsborough County could have had no reasonable expectation that the Department would continue to apply that rate after the result of DOAH Case No. 07-4398. Hillsborough County successfully argued that the counties' expenses should be calculated separately from the Department's expenses. It should therefore come as no surprise to the county that a separate calculation will derive different per diem rates for the counties and the Department. More importantly, the "per diem rate" is not the driver of the formula for calculating the costs of either the counties or the Department. Beth Davis, the Department's director of program accountability, testified that "the per diem rate is simply a mathematical calculation of estimated and/or final costs divided by utilization." The $176.70 per diem rate was an estimate calculated by the Department prior to the 2007- 2008 fiscal year, and would always have been subject to change once the actual utilization data and costs were known at the end of the year. When the actual number of predisposition days turns out to be smaller than the number estimated at the start of the fiscal year, the actual per diem rate will naturally be higher than the estimated per diem rate, absent a proportionate reduction in the legislatively appropriated costs. Hillsborough County did not dispute the actual utilization and cost data employed by the Department, and pointed to no rule or statute binding the Department to its first estimate of the per diem rate. In fact, the evidence established that the Department's final calculation was performed in accordance with Florida Administrative Code Chapter 63G-1 and in conformance to the Final Order in DOAH Case No. 07- 4398.8/ At the hearing, Hillsborough County also contested the Department's use of the final reconciliation from fiscal year 2005-2006 as the basis for its estimate of utilization days at the outset of the 2007-2008 fiscal year. Hillsborough County argues that Florida Administrative Code Rule 63G-1.004(1) requires that each county's share of predisposition detention costs be "based upon usage during the previous fiscal year. . ." Thus, the estimate for the 2007-2008 fiscal year should have been based on usage from the 2006-2007 fiscal year, not that for the 2005-2006 fiscal year. The Department explained that the Legislature meets and passes the budget for the next fiscal year in the spring, well before the end of the current fiscal year. The Department, therefore, is required to make its estimate of utilization days for the next fiscal year prior to the conclusion of the current fiscal year. The calculation for the estimated costs to the counties for fiscal year 2007-2008 was made early in 2007, while the fiscal year 2006-2007 was still underway. The most recent fiscal year with complete and reconciled data was the 2005-2006 fiscal year. The Department used the data from the 2005-2006 fiscal year to estimate the utilization days for the 2007-2008 fiscal year. At the time of the estimate, 2005-2006 was "the previous fiscal year." Under the circumstances, the Department's use of data from the 2005-2006 fiscal year did not violate Florida Administrative Code Rule 63G-1.004(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Hillsborough County's Petition, and making its proposed assessment final. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2010.
