The Issue Whether Rules 33-5.006(8) and 33-5.008(16), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Larry Hendrix, 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 rules at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent 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 visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. At all times relevant to this proceeding, the Petitioner's marital status was single. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. . . . [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code, titled "Visitors." Visitation with approved family members or friends is encouraged by the Rule 33-5.006(7), Florida Administrative Code, to maintain home and community ties. Rule 33-5.006(8), Florida Administrative Code, provides: (8) Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified, and the spouse is removed from the list. The Petitioner presented no evidence during the formal hearing concerning Rule 33-5.006(8), Florida Administrative Code. The weight of the evidence failed to prove that Rule 33-5.006(8), Florida Administrative Code, is an invalid exercise of delegated legislative authority. Rule 33-5.008(16), Florida Administrative Code. During part of 1990, Terry Moore was incarcerated at Union Correctional Institution, the same Institution the Petitioner in incarcerated in. Vianna Austin is the sister of Terry Moore. Ms. Austin is not incarcerated by the Respondent. Ms. Austin and the Petitioner are not related. In early 1990, Ms. Austin submitted a visitor information form to the Respondent in an effort to be placed on the Petitioner's approved visiting list. By letter dated January 30, 1990, the Respondent informed Ms. Austin that she could not be added to Petitioner's visiting list because she was already on the visiting list of her brother, Terry Moore. Ms. Austin made more than one request to be placed on the Petitioner's visiting list and her requests were denied by the Respondent for the reason stated in the January 30, 1990, letter. In late 1990, Terry Moore was moved from Union Correctional Institution to another prison. During the formal hearing, Terry Moore was incarcerated in Avon Park Correctional Institution. Subsequent to Terry Moore's transfer out of Union Correctional Institution, Ms. Austin again requested approval to visit with the Petitioner. Ms. Austin's requests to be placed on the Petitioner's visiting list was denied by the Respondent before and after Terry Moore's transfer because she was an approved visitor of Terry Moore. The Petitioner also requested that the Respondent approve Ms. Austin as his visitor. These requests, which were made before and after Terry Moore's transfer from Union Correctional Institution, were denied by the Respondent because she was on Terry Moore's approved visiting list. The Respondent's denial of Ms. Austin's requests to visit the Petitioner and the Respondent's denial of the Petitioner's requests for visitation by Ms. Austin were based upon Rule 33-5.008(16), Florida Administrative Code. Rule 33-5.008(16), Florida Administrative Code, provides: (16) Regular and special visitors cannot be on more than one inmate's approved visiting list, except for immediate family. A visitor may not visit an inmate and then decide to visit further with friends of that inmate. The Respondent interprets Rule 33-5.008(16), Florida Administrative Code, to prohibit a person from visiting more than inmate unless each inmate the person visits is part of the inmate's immediate family. The Respondent's interpretation applies regardless of the location of the inmates the visitor wishes to visit. Rule 33-5.008(16), Florida Administrative Code, was promulgated by the Respondent to prevent triangle relations. Triangle relationships tend to cause security problems, such as fights between inmates and/or altercations between visitors and inmates and to deter romantic relationships with inmates. The Respondent makes approximately 100,000 inmate transfers each year. Therefore, although inmates may not be in the same institution at a given time, it is not reasonably possible for the Respondent to insure that inmates that have the same visitor on their visiting list are not at some later time transferred to the same institution. Some inmates have been able to get visitors on their visiting lists even though the visitor was on another inmates visiting list in violation of Rule 33-5.008(16), Florida Administrative Code. The weight of the evidence failed to prove that the Respondent allows such visitation if the Respondent is aware of the fact that the visitor is already on one approved visiting list. The weight of the evidence failed to prove that Rule 33-5.008(16), Florida Administrative Code, does not establish adequate standards for decisions by the Respondent, or vests unbridled discretion in the Respondent or that it is arbitrary and capricious.
The Issue Whether Petitioner's application for licensure as a yacht salesperson should be granted.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a 47-year old resident of Hollywood, Florida. He is married and has a five-year old step-daughter. His wife's father is the minister of the First Methodist Church in Hollywood. Petitioner is an active member of his father-in-law's church. In recent years, he has volunteered a significant amount of his time to perform tasks on behalf of the church. Petitioner is now, and has been since June of 1997, employed as a salesperson by Rex Yacht Sales (Rex) in Fort Lauderdale. As a salesperson for Rex, he sells new boats and he also sells used boats that are 32 feet or less in length.3 Approximately, 75 percent of the sales he makes are of used boats. Petitioner specializes in the sale of sailboats. He possesses a considerable amount of knowledge concerning sailboats as a result of the years (since he was a young child) that he has devoted to sailing. Petitioner owned, lived aboard, and captained a sailboat named the "Wave Dancer" from 1975 until the late 1980's. He acquired the "Wave Dancer" in return for his participation in an illicit drug smuggling operation. In 1975, when he was still living in his hometown of Port Washington, New York, Petitioner was approached by a childhood friend, Dan Locastro. Locastro advised Petitioner that he (Locastro) and his associates wanted to buy a sailboat to use to transport marijuana from St. Thomas in the Virgin Islands to the New England coast. Locastro promised Petitioner that, if Petitioner were able locate a sailboat for them to purchase and if he thereafter successfully captained the newly purchased sailboat on its journey to and from the Virgin Islands, Petitioner could keep the sailboat. Approximately a month later, Petitioner notified Locastro that he had located a sailboat for Locastro and his associates. The sailboat was the "Wave Dancer." Locastro and his associates subsequently purchased the "Wave Dancer." They purchased the boat in the name of Richard Harrison. Following the purchase of the "Wave Dancer," Petitioner, accompanied by Locastro, sailed the boat to an island near St. Thomas. There, 500 pounds of marijuana were loaded onto the "Wave Dancer." Petitioner then sailed the boat to the New England coast, where he delivered the marijuana. Petitioner participated in this illicit smuggling operation because he wanted his own sailboat. He was neither arrested, nor charged, for having participated in this operation. As promised, Petitioner was allowed by Locastro and his associates to keep the "Wave Dancer" after the conclusion of operation. The boat was subsequently titled in Petitioner's name. For approximately 12 or 13 years, Petitioner (who was then single) lived in the Caribbean aboard the "Wave Dancer." He earned a living by taking tourists (usually one couple at a time) out in the water on his boat. In the late 1980's, Petitioner decided to return to the United States to live with and care for his parents, who, because of their advanced age, required his assistance. Before moving back to the United States, Petitioner put the "Wave Runner" up for sale. He was unsuccessful in his efforts to sell the boat. He discussed with a friend of his, Ken Fish, the possibility of Fish purchasing the boat for $50,000.00, but no sale was consummated. Petitioner was still the owner the "Wave Runner" when he flew to the United States and moved in with his parents (in their home). He left the "Wave Runner" behind in the Virgin Islands in the care of his friend Fish. Approximately nine months after he left the Virgin Islands, Petitioner received a telephone call from Fish, who indicated that he was having financial difficulty and that he wanted to use the "Wave Runner" in a "marijuana scheme." Approximately six months later, Fish again telephoned Petitioner. This time he told Petitioner that he wanted "to do a cocaine smuggling venture with [the "Wave Runner]." At first, Petitioner told Fish that he (Fish) was "out of his mind." Later during the conversation, however, Petitioner relented and agreed to allow Fish to use the "Wave Runner" in the proposed "cocaine smuggling venture." Petitioner gave his permission without receiving any promise from Fish that he (Petitioner) would receive anything in return. The "cocaine smuggling venture" was unsuccessful. The "Wave Runner" was seized by authorities in Martinique. In the spring of 1991, in United States District Court for the Southern District of Florida Case No. 91-349-CR- HIGHSMITH, Petitioner was criminally charged by the United States government for his role in the "cocaine smuggling venture" with conspiracy to import cocaine into the United States. Petitioner's role in the "cocaine smuggling venture" was limited to permitting Fish to use the "Wave Runner" to transport cocaine into the United States. After his arrest in May of 1991, Petitioner agreed to, and he subsequently did, cooperate with federal authorities by participating in federal undercover drug enforcement operations under the supervision of federal agents. At times during these operations, he was required to place himself in situations where his personal safety was compromised. In or around January of 1994, pursuant to a plea agreement, Petitioner entered a plea of guilty in United States District Court for the Southern District of Florida Case No. 91- 349-CR-HIGHSMITH to one count of conspiracy to import cocaine. On January 30, 1995, Petitioner was adjudicated guilty of said crime and, as punishment, placed on probation for five years and fined $17,500.00. Such punishment constituted a substantial downward departure from the range provided in the United States Sentencing Guidelines. At the sentencing hearing, the sentencing judge explained that he was "constrained to substantially modify the sentence in this case downward" because of the risks Petitioner had taken to assist federal authorities in their drug-fighting efforts. Although under no legal obligation to do so, Petitioner continued to provide similar assistance to federal authorities (at a substantial personal risk) after his sentencing. In September of 1996, Petitioner filed with the Department an application for licensure as a yacht salesperson. Question 13 on the application form read as follows: CRIMINAL HISTORY: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the law of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. Yes No The application form instructed those applicants whose answer to Question 13 was "Yes" to "attach [their] complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or [were] pending." On the application form that he submitted to the Department, Petitioner answered "Yes" to Question 13, but he did not attach the required signed statement. He merely appended to the application form a copy of the judgment entered in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On or about October 1, 1996, the Department sent the following letter to Petitioner: The Department of Business and Professional Regulation, Section of General Regulation is in receipt of your application for a yacht Salesman. A review of your application has disclosed the following deficiencies: You answered Yes to question 13 which asked "Have you been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld?" The paragraph under question 15 further states "If your answer to question 13, 14, 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." You will need to submit a signed statement of the charges and facts, within twenty-one (21) days to this office before your application can be checked for form. Should you have any questions, please contact me. After receiving the Department's October 1, 1996, letter, Petitioner telephonically requested additional time to respond. By letter dated December 13, 1996, Petitioner's attorney, John J. Lynch, Esquire, responded on Petitioner's behalf to the Department's October 1, 1996, letter. Lynch's letter, which was received by the Department on December 17, 1996, read as follows: I represent the Applicant, Richard E. Parker. In response to concerns raised by Richard Parker's application's disclosure of charges and crimes and the results thereof, please consider the following as part of the application process: The subject matter was limited to involvement in a conspiracy to import controlled substances. Mr. Parker voluntarily entered a guilty plea in the U.S. District Court, Southern District of Florida, Miami, Florida, in an action entitled, "United States v. Richard Parker" Criminal No. 91-349-CR- Highsmith. Upon being aware of potential liability, he cooperated fully with the U.S. Government. During a four-year period, he provided extensive assistance to the U.S. Government in ongoing investigations and provided training and resources to special agents. Mr. Parker's participation as a Government agent put him at considerable risk. His case remains under court seal to protect information which may be used by the Government in future criminal prosecutions. I cannot provide a complete transcript of the court proceedings without jeopardizing Mr. Parker's safety. To appreciate Mr. Parker's significant assistance to the U.S. Government, a portion of the Honorable Judge Highsmith's sentencing comments has been enclosed. Pages 11, 12, 14 and 15 of the sentencing memorandum specify the efforts made by Mr. Parker, and recognized by the Court to rectify his prior conduct. (Note: All individuals, other than Mr. Parker, have been redacted to preserve a measure of safety since the matter remains under court seal). In recognition of [his] assistance, Mr. Parker was placed on probation for five years and fined on January 30, 1995. The fine was paid and probation has commenced. I trust this supplemental response answers concerns regarding this unfortunate episode in Mr. Parker's life. As his attorney asserted in the foregoing letter, as of the date of the letter, Petitioner had paid the $17,500.00 fine imposed in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On January 17, 1997, the Department issued its Notice of Intent to deny Petitioner's application for licensure. On February 12, 1997, Petitioner requested a Section 120.57(1) hearing on the matter. On August 12, 1997, Petitioner filed a motion in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH requesting that "his period of probation [be reduced] from a term of 60 months to a term of 32 months thereby terminating his probation on September 30, 1997." In support of his motion, he stated the following: On January 30, 1995, Richard Parker was sentenced by this Court to five years probation for his participation in a cocaine conspiracy. The Court imposed this lenient sentence because of the extraordinary cooperation Richard Parker had rendered (a transcript of the sentencing is attached hereto as Exhibit A). As part of his cooperation Parker had gone to Columbia in a sailboat, at great personal risk and with no protection from law enforcement, and developed a case involving significant arrests, convictions, and seizure of cocaine. Since sentencing Parker has remarried and complied with all terms of probation. Parker had promised the agents and the Court that his cooperation would continue regardless of the sentence imposed by the Court. True to his word, following sentencing, at the request of the DEA, Richard Parker traveled alone to Columbia and negotiated the location in the Caribbean Sea for an air drop of 300 kilos of cocaine. Parker then captained a sailboat and traveled to Dominica and Barbados, St. Kitts and the British Virgin Islands with DEA agents on board and participated in the recovery of the 300 kilos of cocaine as it was dropped from a plane in 50 kilogram packages. Parker received no payment for this cooperation. Parker rendered substantial assistance to the Government after sentencing because of his moral commitment to cooperation as a form of restitution, because of his sense of obligation and gratitude, and because he had given his word to the Government and this Court. It is now over 2 1/2 years since Parker was sentenced. Parker has complied fully with all conditions of probation. Parker has committed himself to building a productive law-abiding life. The Count may well recall that Parker's marriage ended during his cooperation and sentence. Parker has recently married again becoming the father of a four-year old in the process. Parker has spent his life working on and sailing boats. Parker has applied to the State of Florida for a license to be a yacht salesman. The issuance of these licenses in Florida is regulated by the Department of Business and Professional Regulation (DBPR). The DBPR has denied Parker's request for a license citing Parker's conviction as irrefutable proof of moral turpitude as a basis for denial. Parker has petitioned for review and a hearing before an administrative law judge is scheduled for October 14, 1997. Undersigned counsel has been advised that the hearing scheduled for October 14, 1997, will be the final hearing regarding Parker's petition for a license to sell boats in the State of Florida. Regarding this issue, undersigned counsel has become aware of an administrative decision where an application for a license as a yacht and ship salesman was granted by DBPR to an applicant who had been convicted of a drug felony, sentenced to probation and had been terminated from probation. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes v. Orr, Docket No. YS95025 (Final Order No. BPR-95-03991, 7/20/95). It is respectfully submitted that evidence of successful completion of probation by Parker prior to the time of final hearing on October 14, 1997, will either result in the DBPR rescinding their denial of Parker's application or a reversal of DBPR's denial by the administrative law judge. Assistant United States Attorney John Schlessinger has conferred with the United States Probation Officer Anthony Gagliardi regarding this motion and has authorized undersigned counsel to state that the United States has no objection to a reduction of probation from 60 months to 36 months. Richard Parker has applied to the State of Florida for a yacht salesman license so that he can support himself and his family. Richard Parker, through his cooperation, has rebutted any presumption of moral turpitude that attached to his conviction and has affirmatively and courageously demonstrated good moral character; Richard Parker has honored and will continue to honor his pledge to the United States and to this Honorable Court never to break the law again. . . . The Final Order in the Orr case, which was referenced in Petitioner's Motion to Modify Probation, contained the following "findings of fact" and "conclusions of law":
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Petitioner's application for licensure as a yacht salesperson. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 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 9th day of December, 1997.
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 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.
The Issue Whether Petitioner, the spouse of an inmate of the Florida correctional system, has standing to challenge Florida Administrative Code Rule 23-21.0155, which provides that if the Commission declines to authorize the effective parole release date of an inmate referred for extraordinary review, the Commission must suspend the established presumptive parole release date until the inmate is found to be a good candidate for parole release.
Findings Of Fact On October 10, 1995, Petitioner married Anthony Ray Peek, an inmate housed in a Department of Corrections facility. Mr. Peek is serving a parole-eligible sentence pursuant to chapter 987, Florida Statutes. On September 1, 2010, Petitioner appeared and spoke at a Commission hearing convened to determine whether to authorize Mr. Peek?s presumptive parole date of September 29, 2010. By order dated September 2, 2010, the Commission decided not to authorize Mr. Peek?s presumptive parole date, and referred the case for extraordinary review pursuant to rule 23-21.0155. On November 9, 2010, the Commission entered an order by which it determined that it would not authorize an effective parole date for Mr. Peek, that his presumptive parole release date remained suspended, and established May, 2017, as the date for Mr. Peek?s next extraordinary review interview. The Commission?s action applied the standards for placing an inmate on parole established in section 947.18, Florida Statutes. In taking its action, the Commission utilized the procedures for extraordinary review established in rule 23-21.0155, which provides, in its entirety, that: 23-21.0155 Extraordinary Review Procedures. When an inmate?s case is referred for extraordinary review by the Commission, an order shall be prepared outlining the reason(s) for the Commission?s decision. The order shall be acted upon by the Commission within 60 days of the decision declining to authorize the effective parole release date. The Commission?s order shall specifically state the reasons for finding the inmate to be a poor candidate for parole release pursuant to Section 947.18, F.S., and shall identify the information relied upon in reaching this conclusion. Additionally, the order shall suspend the established presumptive parole release date until such time that the inmate is found to be a good candidate for parole release. The determination, on extraordinary review, that an inmate is not a good candidate for parole release shall have the effect of overriding his presumptive parole release date however, the inmate shall continue to receive extraordinary interviews, which shall be scheduled pursuant to Rule 23-21.013, F.A.C. If upon extraordinary review, a majority of the Commission finds the inmate to be a good candidate for parole release pursuant to Section 947.18, F.S., the Commission shall enter a written order authorizing the effective parole release date and outlining the term and conditions of parole. Specific Authority 947.002, 947.07 FS. Law Implemented 947.002, 947.07, 947.18 FS. History–New 8-1-83, Formerly 23-21.155, Amended 8-17-06. Had he been released from prison on parole, Mr. Peek would have had the opportunity to live with Petitioner. As a result of the Commission?s action, Petitioner is not able to live and cohabitate with Mr. Peek as a married couple.
The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes. On or about January 24, 1997, Mr. Dempsey submitted to the Commission an application for licensure as a real estate salesperson. Mr. Dempsey answered "yes" to Question No. 9 on the application, which asks in pertinent part: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" He attached the details to his application. Mr. Dempsey answered "yes" to Question No. 10(a) on the application, which asks in pertinent part: "Has any judgment or decree of a court been entered against you in this or any other state, . . . in which you were charged . . . with any fraudulent or dishonest dealing?" Mr. Dempsey attached the details of a 1988 conviction for mail fraud to his application. On December 12, 1983, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, revoked Mr. Dempsey's probation and sentenced him to two years imprisonment based on his plea of guilty to three counts each of uttering a forged instrument and of second degree grand theft, one count of forgery, and one count of failure to redeliver a hired motor vehicle. On July 9, 1986, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, sentenced Mr. Dempsey to three and one-half years imprisonment based on his plea of guilty to one count of robbery, one count of aggravated battery, one count of possession of cocaine, two counts of forgery, two counts of uttering a forged instrument, and two counts of second degree grand theft. On or about May 31, 1989, Judge Roettger of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to three years confinement based on a guilty plea to one count of mail fraud. The court withheld imposing a sentence of confinement on Mr. Dempsey for another count of the indictment, and sentenced him to five years probation, to run concurrently with the sentence of confinement. On December 21, 1990, Judge Moreno of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to fifteen months' imprisonment based on his plea of guilty to one count of escape. The sentence of imprisonment was suspended, and Mr. Dempsey was placed on a three-year term of supervised release. On January 29, 1992, Mr. Dempsey appeared in the Dade County Court and pled not guilty to one count of soliciting for prostitution. He was found guilty and sentenced to attend an AIDS course and to have an AIDS test. On May 27, 1992, Judge Moreno of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's supervised release and sentenced him to one-year imprisonment for violation of the terms of his supervised release. On July 9, 1995, Judge Roettger of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's probation and sentenced him to imprisonment for five years for violation of the conditions of his probation. On January 14, 1997, Mr. Dempsey was paroled by the United States Parole Commission and released from the Marianna Federal Correctional Institution. His parole expires May 14, 2000. Since January 23, 1997, Mr. Dempsey has been employed by Westgate Resorts, a timeshare resort in Miami, Florida. In July 1997, he was promoted to manager. Since he was found guilty in 1988 of mail fraud, Mr. Dempsey's only criminal conviction was for the misdemeanor of soliciting for prostitution. His other offenses were violations of the terms of his supervised release on the charge of escape and of his probation on the charge of mail fraud. The evidence presented in this case is not sufficient to establish that Mr. Dempsey, at this time, is of good character and trustworthiness and has a reputation for fair dealing. The uncontroverted evidence establishes that Mr. Dempsey has been convicted of crimes involving forgery, grand theft, and mail fraud.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Lloyd Robert Dempsey for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Lloyd Robert Dempsey, pro se 5577 La Gorce Drive Miami Beach, Florida 33140-2137 Andrea D. Perkins Assistant Attorney General Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
