Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
The Issue Whether Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Darryl James McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing inmate visitation and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides: Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Petitioner, a married male inmate, has made requests to have females, by whom he has had children and who have custody of those children, placed on his visiting list. The females by whom the Petitioner has children are his current wife, his former wife and a girlfriend. Those requests have been denied by the Respondent. The Petitioner has attempted to add his former girlfriend and his former mother-in-law to his visiting list. His former wife and all of his children are currently on his visiting list. His current wife was not on his visitor list because she was also incarcerated at the time of the final hearing. The Petitioner has suggested that he has been denied visitation with his children by his former wife and his current wife that he is unable to see because of his inability to have more than one female visitor. The Petitioner's former girl friend was offered a special visitor's pass which was limited to week days but, due to her employment, did not visit the Petitioner. Although the evidence proved that the application of the Challenged Rule to the Petitioner and the Petitioner's circumstances make it difficult for the Petitioner to have visitation with some of his children, the evidence failed to prove that the Challenged Rule itself bars married inmates from having visitation with minor children from other marriages or relationships. The Respondent promulgated the Challenged Rule to limit the number of female visitors a married inmate may have for the following reasons: Male inmates tend to request visitation from more females than males. Due to limited space for visitation, the increasing number of inmates at every institution and the burden placed on the staff of the correctional institutions to handle visitation, the number of visitors had to be limited. Each visitor has to have a local law enforcement background check and each visitor must be checked by staff before visitation. Visitation is generally allowed between 9 and 3 on visiting days but visitors may all show up at essentially the same time. There is limited staff to handle the checking of visitors and the supervision of the visitation area.
The Issue Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent stipulated that the Petitioner has standing to institute this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Rule 33-7.005, Florida Administrative Code. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution." Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989). Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights. --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). The Challenged Rule provides, in pertinent part: Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody. All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . . The Respondent releases approximately 40,000 to 45, 000 inmates each year. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.
Findings Of Fact Both parties filed proposed findings of fact. Except as noted below, I have incorporated the substance of these proposed findings into my findings of fact. Rejected DOT Proposed Findings of Fact The following proposed findings are rejected because they are not facts but only recitations of testimony: Rule 22I-6.006 - proposed finding 1 - second and third sentence. Rule 22I-6.037 - proposed finding 1 - second sentence. proposed finding 2 - first and second sentence. The following proposed findings are irrelevant to the resolution of this case: Rule 22I-6.006 - proposed finding 4 and 5 because the proposed rule applies to other agencies than DOT. proposed finding 6 because whether another method of notifying all bidders is more efficient is not the standard to determine validity of the rule. Rule 22I-6.037 - proposed finding 3, 5, and 7. Rejected DOAH Proposed Finding of Fact The following proposed finding of fact are rejected because these are more in the nature of legal argument or conclusions of law rather than findings of fact: Proposed finding 5 - sentences 5 and 6. Proposed finding 6 - second paragraph, sentences 1 and 2; third paragraph, sentence 4 and 5; and fourth paragraph Proposed finding 7 - second paragraph; third paragraph; and fourth paragraph, fifth sentence Proposed finding 8 - fourth paragraph; fifth paragraph; and sixth paragraph The follow proposed findings are rejected as being irrelevant to the resolution of the issues presented in this case. Proposed finding 1 - fourth sentence Proposed finding 6 - second paragraph, sentence 5 and 6 Proposed finding 7 - fourth paragraph, sentence 1 through 4 The following proposed finding is rejected as not supported by the record evidence: Proposed finding 6 - fourth paragraph, sentence 4 fifth paragraph, sentence 4 ANALYSIS Standing The first issue that must be addressed is DOT's standing. DOAH asserts that Dot lacks standing to challenge Proposed Rules 22I-6.035 and 22I-6.037. DOT has the burden to establish that it would be substantially affected by the proposed rules should they be adopted by DOAH. Section 120.54(5)(b), Fla. Stat. (1985); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to resolve whether DOT has met its burden, a review of the pertinent decisions on standing is appropriate. 5/ The case cited most often on standing is the First District Court of Appeal's decision in Florida Department of Corrections v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978). The court held that an inmate who had been confined for committing an assault while in prison lacked standing to challenge an existing rule concerning disciplinary confinement and forfeiture of gain-time. Because the inmate was no longer confined under the rule and had not lost any gain-time when he filed the rule challenge, the court reasoned that the inmate had not suffered an injury in fact at the time of the challenge, end therefore, was not substantially affected by the existing rule. Whether the inmate would be subject to the rule again depended on the likelihood he would commit another infraction. The court deemed this too speculative and subject to conjecture to grant standing. 353 So.2d at 1236. In a later case, the Florida Supreme Court overruled Jerry to the extent it required associations to demonstrate a specific injury to the organization itself rather then to some of its members. Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982). In reaching its decision, the court warned against an overly restrictive application of the concept of standing in the rule challenge cases by noting: "Expansion of public access to activities of governmentally agencies was one of the major legislative purposes of the new Administrative Procedure Act." 412 So.2d at 352-53. Standing to challenge proposed agency rules was addressed in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). There, the court held that all women of child bearing age who received medicaid benefits were not substantially affected by a proposed rule denying medicaid payments for abortions except under limited circumstances. In denying standing to a woman who was not pregnant at the time of the rule challenge, the court specifically rejected the argument that standing to challenge a proposed rule under Section 120.54(4), Florida Statutes (1985), is less restrictive than standing to challenge an existing rule under Section 120.56, Florida Statutes (1985), by stating: There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule. 367 So.2d at 1052. In Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), the court held that a group of paramedics had standing to challenge rules establishing additional requirements for renewal of a paramedical certification. There was no showing on any of the individual paramedics had attempted to comply with the new rules or that anything in the new rules would disqualify them from retaining their certification. In rejecting the hearing officer's ruling that these individuals could not claim an injury because they had not yet applied for certification under the new rules, the court stated: The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule's applicability to, or substantial its effect on, the challengers... The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to chal- lenge the rule. A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case as well as by proving injury in fact. 396 So.2d at 1195-96 (citations omitted) see also 4245 Corp., Mother's Lounge Inc. v. Department of Beverage, 345 So.2d 934 (Fla. 1st DCA 1977). The court distinguished Jerry and Alice P. on the grounds that the petitioners in the case before it were immediately subject to the rule which rendered their continued employment as paramedics unlawful without compliance with the rule. The individuals were presently affected by the rule because they worked in the area to be regulated. 396 So.2d at 1196. In Village Park Mobile Home Association v. Department of Business Regulation, 506 So.2d 426, 412 (Fla. 1st DCA 1987), the court on rehearing emphasized under the test for standing set forth in Fire Fighters that a party may show "that a rule has a real and immediate effect upon his case, as well as injury in fact." Standing was not found in Village Park for certain mobile home owners to challenge agency approval of the prospectus for a mobile home park because the prospectus only disclosed the method for raising rents and reducing services in the future. It was up to the landlord to implement the prospectus at some unspecified date in the future. 6/ Thus, no standing was found because the alleged injury was contingent upon the future actions of a third party. 506 So.2d at 433-34; see also Boca Raton Mausoleum v. Department of Banking, 511 So.2d 1060 (Fla. 1st DCA 1987). In this case, DOT has not alleged that it has suffered an injury in fact by Proposed Rules 22I-6.035 and 22I-6.037. That is not surprising with respect to Proposed Rule 22I-6.037 since it is a new rule that has not been implemented. However, with respect to the proposed amendments to Rule 22I-6.035, dealing with attorney's fees and costs, most of DOT's challenges concern portions of the rule that were not substantially changed in the proposed rule. For example, DOT objects to the provisions requiring an agency to file a response or affidavit and the provisions which allow for a waiver of the right to an evidentiary hearing when one is not affirmatively requested by either party. Rule 22I-6.035 presently contains such provisions. Therefore, the injury in fact test would be applicable. However, DOT has not presented any facts indicating that a prevailing small business party has ever filed a petition seeking costs and attorney's fees from DOT under Florida Equal Access to Justice Act. Consequently, no injury exists. The alternative test for standing is whether the proposed rules would have a "real and immediate effect" upon DOT. With respect to Proposed Rule 22I- 6.035, DOT has not met this test merely by demonstrating that it is a party to pending cases involving small business parties. In order for DOT to be affected by Proposed Rule 22I-6.035, a small business party would first have to prevail against DOT and then file a petition for costs and attorney's fees based upon its belief that DOT was not "substantially justified" in bringing the administrative action. Whether these contingencies, which are controlled by a third party, will occur in the future is open to conjecture and speculation. The type of immediacy envisioned by the court in the Fire Fighters case does not appear to be present with respect to Proposed Rule 22I-6.035. Therefore, DOT does not have standing to challenge this proposed rule. On the other hand, I conclude that DOT has standing to challenge Proposed Rule 22I-6.037. DOT presently has at least nine pending cases involving administrative complaints. The proposed rule on voluntary dismissals would be immediately applicable to DOT's ability to take a voluntary dismissal on those cases without being contingent upon the acts of a third party. Such a real and immediate effect on pending cases involving DOT is sufficient to provide DOT with the requisite standing. DOT does not have to invoke the rule by seeking a voluntary dismissal in order to have standing to challenge the rule as suggested by DOAH. See Professional Fire Fighters of Florida, 396 So.2d at 1195. Invalidity of Proposed Rules 22I-6.006 and 22I-6.037 The Florida Legislature has recently defined what constitutes an invalid exercise of Legislative authority. Section 120.52(8), Florida Statutes, as amended by Chapter 87-385, Section 2, Laws of Florida, provides: (8) "Invalid exercise of delegated legisla- tive authority" means action which goes beyond the powers, functions, duties delegated by the Legislature. A proposed existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a ) The agency has materially failed to follow the applicable rulemaking procedure set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or con- travenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. These standards are similar to those used by the courts in Florida to test the validity of agency rules. See e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Humana Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). In Agrico Chemical Co., the First District Court of Appeal stated: [I]n a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its author- ity; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious. A capricious action is one which is taken without though or reason or irration- ally. An arbitrary decision is one not supported by facts or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evi- dence. Competent substantial evidence has been described as such evidence as a reason- able person would accept as adequate to support a conclusion. The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one. 365 So.2d at 763. In this case DOT has the burden to demonstrate that adoption of Proposed Rules 22I-6.006 and 22I-6.037 would constitute an invalid exercise of legislative authority. Proposed Rule 22I-6.006 DOAH is statutorily authorized "to adopt reasonable rules to carry out the provisions of this act [Chapter 120]." Section 120.65(7), Fla. Stat. (1985). Regarding bid protests, an agency is required to forward a protest to DOAH for an evidentiary hearing in accordance with Section 120.57(1), Florida Statutes (1985), whenever there is a disputed issue a material fact. Section 120.53(5)(d)2, Fla. Stat. (1985). Section 120.57(1) sets forth certain procedures for conducting evidentiary hearings and proceedings where the substantial interests of a party are determined. In light of these statutory provisions, DOAH proposes to amend Rule 6.006 by requiring that an agency send a copy of the notice of hearing to all bidders, other than the protesting bidder, and attempt to telephonically notify these bidders of the date, time, and place the hearing. The purpose of this requirement is to give notice of the deadline to file a motion to intervene in the protest proceeding to the successful bidder, as well as all other bidders who had not filed a timely protest. Motions to intervene must be filed within five days prior to start of an evidentiary hearing. Fla. Admin. Code Rule 6.010. DOT persuasively argues that this portion of Proposed Rule 22I-6.006 requires an agency to do a useless act because any bidder that has not flied a timely protest is precluded from gaining party status in a bid protest proceeding by filing a motion to intervene. I agree. Section 120.53(5), Florida Statutes (1985), requires an agency to provide notice of its decision, or intended decision, concerning a bid solicitation. The notice must contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Paragraph (b) of Section 120.53(5), provides: Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based. These statutory provisions are clear and unequivocal. An unsuccessful bidder must file a protest within the 72 hour limitations period in order to participate in further Chapter 120 proceedings. Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986); see also Capelletti Brothers v. Department of Transportation, 499 So.2d 555 (Fla. 1st DCA 1986)(72 hour deadline applies to protest challenging bid specifications). An adversely affected bidder cannot, and should not be allowed to, gain a back door point of entry to obtain party status in a bid protest proceeding by filing a motion to intervene when the bidder has already waived its right to participate in the proceeding. The only substantially effected entity that would be entitled to intervene in a bid protest proceeding is the successful bidder. Therefore, there would be a valid purpose in adopting a rule that required the successful bidder to receive the notice of hearing so that it would be aware of the deadline for filing a motion to intervene. However, as to all other non-protesting bidders, there is no statutory basis for providing the notice of hearing to them in light of what appears to be a clear prohibition against allowing those bidders to obtain party status after failing to file a timely protest pursuant to Section 120.53(5)(b), Florida Statutes (1985). DOAH argues that the need for subsection (2) of Proposed Rule 22I-6.006 is dramatized by the case of Spillis Candella and Partners, Inc. v. School Board of Dade County, No. 86-3002 Bid. There, the hearing officer determined that the agency never complied with the notice requirements triggering the 72 hour limitations period. Therefore, the protest filed in that case was determined to be timely since the 72 hour time limit had not expired. This single case does not provide justification for requiring agencies to give notice of the evidentiary hearing to all unsuccessful bidders in all bid protest cases. No evidence was adduced indicating that the failure to provide the requisite statutory notice issue raised in the Spillis Candella case had ever occurred in any other bid protest proceeding that had come before a DOAH hearing officer. Even if this had been a recurring problem, subsection (b) of the Proposed Rule 22I-6.006 could have been more closely tailored to remedy issues similar to that raised in Spillis Candella. The rule should have limited an agency's responsibility to provide a notice of hearing to all unsuccessful bidders if the agency had not previously complied with the notice requirements of Section 120.53(5), Florida Statutes (1985). 7/ In light of the foregoing, I conclude that subsection (2) of Proposed Rule 22I-6.006 is arbitrary because it requires agencies to provide notice of a bid protest hearing to bidders who have waived their right to become parties in the proceeding. The rule also contravenes Section 120.53(5)(b), Florida Statutes (1985), which contemplates that only timely protestors may participate as parties in a bid proceeding. 8/ Subsection (3) is also invalid because it requires that an agency provide to the hearing officer proof that it has complied with subsection (2). DOT's remaining objections to Proposed Rule 22I-6.006 are without merit. The fact that all agencies involved in bid protests must adopt rules end procedures for the resolution of such protests, and that the Administration Commission shall also adopt model rules on the same subject, does not indicate a legislative intent to preempt DOAH from adopting rules pertaining to the procedures for conducting bid protest hearings. Section 120.53(5)(a) and (f), Fla. Stat. (1955). In addition, Section 120.57(1)(b), Florida Statutes (1985), does not prohibit non-parties from receiving notice of an evidentiary hearing. Proposed Rule 22I-6.037 DOT advances numerous arguments in support of its contention that subsections (2) and (3) of Proposed Rule 22I-6.037 constitute an invalid exercise of legislative authority. I am persuaded by two of these arguments that DOT's position has merit. First, with respect to subsection (2), the proposed rule provides a hearing officer with the discretion to grant a motion for voluntary dismissal "upon such terms and conditions as the hearing officer deems just and proper." This language fails to provide any guidance to a hearing officer or to the parties in an administrative complaint proceeding as to what conditions a hearing officer could impose for allowing the agency to withdraw its complaint without prejudice. Instead, the rule gives the hearing officer unlimited discretion to impose any condition the hearing officer subjectively believes is "just and proper." These words cannot be construed as words of limitation because it must always be presumed that a hearing officer will rule in a manner that he or she believes is just and proper. Thus the elimination of the "just and proper" language from the rule would not give any more discretion to a hearing officer than is presently granted by the proposed rule. The fact that Florida Rule of Civil Procedure 1.420(2) provides that a trial court may grant a voluntary dismissal filed after submission of a case to the court "upon such terms and conditions as the court deems proper," does not provide a basis for concluding that subsection (2) of Proposed Rule 22I-6.037 is valid. The Rules of Civil Procedure were adopted pursuant to the inherent power of the courts, a power that administrative agencies do not possess. Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748, 753-54 (Fla. 2nd DCA 1985). Agency rules may not violate the standards set forth in Section 120.52(8), Florida Statutes, as amended by Chapter 57-325, Section 2, Laws of Florida. In this case, subsection (2) of Proposed Rule 22I- runs afoul of paragraph (d) of Section 120.52(8), Florida Statutes, as amended, which provides that a rule is invalid if [t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Therefore, subsection (2) of Proposed Rule 22I-6.037 is invalid. Subsection (3) of the proposed rule is also invalid but for a different reason. Unlike subsection (2), nothing is left to the parties' imagination as to the consequences an agency will encounter if it files a notice of voluntary dismissal of an administrative complaint containing nonjurisdictional allegations that were previously the subject of a voluntary dismissal. Those nonjurisdictional factual allegations contained in both complaints will be deemed dismissed with prejudice. The issue with regard to this rule provision is whether DOAH has the statutory authority to adopt a rule that requires dismissal of an administrative complaint with prejudice under these circumstances. Although no cases are directed on point, two district court of appeal decisions are instructive. In Great American Bank v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), the First District Court of Appeal revised a hearing officer's order imposing sanctions for a party's failure to make discovery and for a witness' failure to give responsive testimony. The court ruled that certain portions of the model rules, which purported to give such authority to a hearing officer, were invalid because they conflicted with the discovery enforcement provisions found in the Administrative Procedure Act. Section 120.58(3), Fla. Stat. (1981). The Legislature subsequently amended Section 120.58 to specifically grant hearing officers the authority to pose sanctions to effect discovery. Ch. 84-173, Laws of Florida. In Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), the Second District Court of Appeal declared Model Rule 28-5.211 invalid to the extent the rule authorized a hearing officer to impose sanctions, including dismissal, to enforce procedural orders. The court rejected the argument that the same general rulemaking authority relied upon by DOAH as authority for Proposed Rule 22I-6.037, Sections 120.53 and 120.65(7), Florida Statutes (1985), authorized the model rule. Rather, any rule that provides a sanction in the form of a penalty must be based upon explicit statutory authority such as that found in Section 120.58(1)(b), Florida Statutes (1985), or Section 120.57(1)(b), Florida Statutes (Supp. 1986). 9/ 472 So.2d at 747-48. Subsection (3) of Proposed Rule 22I-6.037 imposes the sanction of dismissal with prejudice. However, in contrast to the specific saction authority granted to hearing officers in Sections 120.58(1)(b) and 120.57(1)(b)5, no provision in Chapter 120 specifically authorizes DOAH to impose a sanction under the circumstances set forth in subsection (3) of Proposed Rule 22I-6.037. Therefore, while I find the purpose of adopting subsection (3) of the proposed rule, to ensure failness, is laudable, this portion of the rule is invalid because DOAH does not possess the requisite legislative authority to adopt such a rule. Section 120.52(5)(b), Fla. Stat., as amended by Ch. 87-358, Section 2, Laws of Florida.
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to section 112.3173, Florida Statutes, when he pled guilty to conspiracy to commit honest services fraud in violation of title 18, United States Code, section 371.
Findings Of Fact The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with governing, managing, and administering the FRS on behalf of the Florida Department of Management Services. Newell was first elected to a four-year term as Palm Beach County Commissioner representing District 3 in 1992 and he was reelected in 1996, 2000, and 2004. By reason of his employment, Newell was enrolled in the FRS because the Palm Beach County Board of County Commissioners is a FRS-participating employer. On or about November 20, 1996; November 21, 2000; and November 17, 2004, Newell executed oaths of office and swore to uphold the Constitutions and Governments of the United States of America and State of Florida pursuant to article II, section 5(b), Constitution of Florida. On July 17, 2007, Newell notified then-Governor Charlie Crist by letter of his resignation from his position as County Commissioner effective the same day. The letter stated: As an elected official, I fully understand my fiduciary relationship to the public. I also understand how I breached that relationship. I take full responsibility for my conduct. It is my intention to cooperate with the Federal Government, and, in the coming weeks, I intend to plead guilty to a criminal offense. On or about July 23, 2007, Newell voluntarily signed a Statement of Uncontested Facts detailing his actions regarding his pending federal criminal prosecution. On or about August 9, 2007, after Newell was advised of the nature of the charge(s) and accusations of conspiracy against him, he waived, in open court, prosecution by indictment and consented to proceeding by information. That same day, Newell was charged, by Information, in the United States District Court, Southern District of Florida, in case number 9:07-cr-80212, with a single count, two-object conspiracy to commit offenses against the United States, in violation of 18 U.S.C. § 371. The first object charged Newell with conspiring to commit honest services fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1346. The second object charged Newell with conspiring to file a false federal income tax return for calendar year 2004, in violation of 26 U.S.C. § 7206(1). At all times relevant to the Information, Newell served as a Palm Beach County Commissioner. On or about September 11, 2007, pursuant to a written Plea Agreement, Newell pled guilty to the single count, two- object conspiracy alleged in the Information, wherein he agreed to the facts the government outlined as a basis for the charge against him for the plea of guilty. He was adjudicated guilty. The Information detailed the scheme and alleged in relevant part, the following: * * * Beginning as early as in or around January 2002 and continuing through in or around May 2006, defendant WARREN H. NEWELL, kept his personal motor vessel at PBYC [Palm Beach Yacht Center] at a 50% reduced dockage rate. From in or around January 2002 and continuing through in or around May 2006 defendant WARREN H. NEWELL paid only a very small portion of his expenses with PBYC, accumulating a debt of approximately $48,092. As early as in or around March 2004, defendant WARREN H. NEWELL publicly advocated for a bond resolution securing public funds to preserve waterfront access for the people of Palm Beach County. * * * In November 2004, the citizens voted for the issuance of the $50,000,000 bond to preserve their access to, and the preservation of, waterfront properties. The bond gave the discretion to the BCC to find suitable public and private investment on behalf of the citizens to achieve those goals. With regard to private investment, the bond required the passing of a real property interest to the public to make the bond award valid. Defendant WARREN H. NEWELL advocated on numerous occasions, both in public and to PREM [Property and Real Estate Management for Palm Beach County], for the PBYC to receive a substantial portion of the waterfront bond money to purchase partial development rights for the citizens of Palm Beach County. The purchase of development rights is not a recognized interest in real property. * * * 50. After PBYC received $14,000,000 in waterfront bond monies in or around March 2006, defendant WARREN H. NEWELL agreed with L.B.B. and K.D.S. to create a false and fraudulent SFRN [SFRN, Inc.] invoice to PBYC which was designed and intended to create an appearance that defendant NEWELL, paid his outstanding PBYC bill, however, in actuality he paid PBYC with monies generated from the fraudulent invoice and paid PBYC with PBYC’s monies. * * * 64. It was the object of the scheme to defraud to unjustly enrich defendant WARREN H. NEWELL and others by having defendant NEWELL use his public position to advance ventures and relationships in which he had concealed financial interest and to continue to conceal those financial interest and relationships. * * * Defendant WARREN H. NEWELL used his elected position to advocate the payment of $14 million of taxpayer monies to his business partner and benefactor, L.B.B. without disclosing his true financial relationship with L.B.B., and his significant financial debt to L.B.B. and the PBYC. After the PBYC and L.B.B. received $14 million from the BCC, in order to avoid the true appearance of a $40,000 kickback debt forgiveness for his motor vessel from the PBYC, defendant WARREN H. NEWELL used his financial relationship with K.D.S. and L.B.B. to cause the issuance of a bogus invoice to PBYC from SFRN. PBYC’s payment to SFRN on that fraudulent invoice was immediately disbursed by K.D.S. to defendant NEWELL as a “bonus,” and defendant NEWELL subsequently used most of that “bonus” to make a substantial payment on his PBYC debt. On or about November 20, 2007, the federal court adopted and amended Newell’s plea agreement to which the parties had agreed to the amended terms. Newell pled guilty and entered an amended plea agreement with the United States to the offense of conspiracy to commit honest services fraud in violation of 18 U.S.C. § 371. In the amended plea agreement, the United States dismissed the second object of the conspiracy relating to filing a false income tax return. On or about January 11, 2008, the United States District Court adjudicated Newell guilty and sentenced him to the United States Bureau of Prisons for 60 months imprisonment, two years of supervised release, and payment of a $100.00 special assessment. Newell also forfeited $135,000.00. In May 2009, the United States moved the court to reduce Defendant’s sentence based on substantial assistance he provided to the Government. As a result, Newell’s sentence of imprisonment was reduced and amended to a term of 36 months. Newell has completed his sentence and term of supervised release. Newell was notified by certified letter dated May 19, 2010, of the Division’s proposed action to forfeit his FRS rights and benefits pursuant to the Florida Constitution, article II, section 8(d), and sections 112.3173 and 121.091(5), Florida Statutes. The notice provided the following basis for the proposed action: as a result of your guilty plea in the United States District Court for the Southern District of Florida for acts committed in connection with your employment with the Palm Beach County Board of County Commissioners. Specifically, on or about July 23, 2007, in Case Number 9:07-cr-80121, you pled guilty to one count of conspiracy to commit honest services fraud, in violation of 18 U.S.C. § 371. On or about January 11, 2008, you were adjudicated guilty of this crime. By Petition dated June 4, 2010, Newell contested the notice and challenged the forfeiture. Newell is not retired from the FRS and is not receiving FRS retirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner pled guilty to a crime which requires forfeiture of his FRS rights and benefits pursuant to section 112.3173. DONE AND ENTERED this 28th day of March, 2014, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 28th day of March, 2014.
Findings Of Fact The Respondent, the Florida Department of Revenue (hereinafter referred to as the "Department"), notified Petitioner, Irvin L. Olden, by a Revised Notice of Intent to Make Documentary Stamp Tax and Discretionary Surtax Audit Changes (hereinafter referred to as the "Revised Notice"), that he owed $164.45 in documentary stamp tax, plus penalty of $41.11 and interest thru June 6, 1994 of $70.71. See Petitioner's exhibit 3. The Revised Notice was entered May 31, 1994. Mr. Olden was informed in the Revised Notice that the "legal basis" of the proposed audit changes was "Chapters 201.01, 201.02, 201.08, 201.17, F. S." and "Rules 12B-4.012(1) and (2), F.A.C." Mr. Olden filed a written protest to the Revised Notice by letter dated June 23, 1994. On July 12, 1994, the Department issued a letter in response to the written protest. Petitioner's exhibit 2. In pertinent part, Mr. Olden was informed: Your Quit Claim Deed recorded November 6, 1990, transferred half interest in real estate from Sue H. Olden to Irwin L. Olden. There was a $60,000 mortgage on the property. According to Rules 12B-1.012 (1) and (2), and 12B-1.013 (25) and (32), Florida Administrative Code, this transfer is taxable because of the mortgage on the property. The rules state that any deed is taxable if consideration for the property is given. The rules go on to state that a mortgage on the property is consideration. The rules are attached. The letter incorrectly referred to Rule 12B-1.012(1) and (2), Florida Administrative Code, and Rule 12B-1/013(25) and (32), Florida Administrative Code. The Department intended to refer to Rules 12B-4.012 and 12B-4.013, Florida Administrative Code. Mr. Olden timely challenged the proposed assessment of tax pursuant to Section 120.57(1), Florida Statutes. On November 23, 1994, Mr. Olden also filed a petition with the Division of Administrative Hearings challenging the validity of Rule 12B-4.012(2), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. Rule 12B-4.012(2), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides, in pertinent part: (2) Definitions: (a) "Consideration" under s. 201.02, F.S., includes but shall not be limited to, money paid or to be paid, the amount of any indebtedness discharged by a transfer of any interest in real property, mortgage indebtedness and other encumbrances which the real property interest being transferred is subject to, notwithstanding the transferee may be liable for such indebtedness. Where property other than money is exchanged for interest in real property, there is the presumption that the consideration is equal to the fair market value of the real property interest being trans- ferred. [Emphasis added]. Mr. Olden specifically challenged the portion of the Challenged Rule emphasized in finding of fact 6. Mr. Olden alleged that the Challenged Rule is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. The language of the Challenged Rule which Mr. Olden has alleged is invalid had an effective date of February 13, 1991. Although not clearly stated in Mr. Olden's petition, Mr. Olden's standing to challenge the Challenged Rule is based upon the fact that the Department relied on the Challenged Rule in the Revised Notice and the letter in response to Mr. Olden's written protest. Pursuant to the Department's Motion to Dismiss for Lack of Standing filed by the Department on February 24, 1995, the Department stipulated to the following: The Department stands by its assessment in the assessment proceeding. The statute which was recited in the Department's assessment provides ample authority for the assessment without reference to a subsequently promulgated rule. . . . The Department does not seek to retroactively apply a rule to a transaction which preceded the effective date of that rule. Any statement in the Notice of Proposed Assessment which indicates an intention to apply a rule on a retroactive basis is hereby withdrawn. . . . However, while the rule is valid, it now appears that Petitioner lacks standing to challenge a rule which is not intended to be applied to Petitioner. Petitioner has standing to challenge the assessment and to challenge the Department's prerule application of the Section 201.02, Fla. Stat. (1990). . . . Now that the Department formally withdraws any reference to the rule in support of its assessment against the Petitioner, there is no reason for this matter to proceed further. Counsel for the Department reiterated the Department's position at hearing.
The Issue Whether Petitioner should receive an exemption from disqualification to work with children, pursuant to Section 435.07(1), Florida Statutes.
Findings Of Fact Based on the evidence, the following facts are determined: Petitioner applied to Respondent for a foster care license in late 1999. The required background screening revealed that on March 15, 1976, the Petitioner was found guilty of petit larceny; and on August 24, 1995, an injunction for protection against domestic violence was issued against Petitioner after an evidentiary hearing. Respondent notified Petitioner that he was ineligible to work with children based on the domestic violence injunction issued against him. He was advised of his right to seek an exemption from disqualification. Petitioner, thereafter, timely applied for such an exemption. At the formal hearing, Petitioner's only evidence as to his entitlement to an exemption was his own testimony. He presented no other witnesses and no exhibits. He limited his presentation to a description of himself as the "victim" in an acrimonious divorce proceeding. Petitioner describes his arrest for a violation of the injunction as part of a conspiracy to defraud him of property orchestrated by this former wife. The injunction clearly states that Petitioner would be arrested for coming on the premises where the victim resided or worked, even if invited by the victim. Petitioner admitted he violated the injunction often when it was first issued. The injunction was issued after proper notice and a hearing pursuant to an affidavit filed by his former wife. Several times the Petitioner was asked by counsel for Respondent and by the Administrative Law Judge whether the Petitioner could demonstrate the injunction was no longer in effect. The Petitioner failed to respond. Petitioner did not deny the allegations stated in the Petition for Injunction except to say that he no longer owns a gun. Petitioner did not address the circumstances surrounding the issuance of the injunction. Petitioner testified that he loved children and was good with them. Over the years he has coached a little league baseball team, has raised three children of his own and was an auxiliary policeman for several years in the 1980s. Petitioner did not provide any evidence, other than his own statements, that he is a person of good moral character. Moreover, Petitioner failed to address the issue of the basis for an exemption. Petitioner failed to show why he should be granted an exemption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying Petitioner's application for exemption from employment in a position of special trust. DONE AND ENTERED this 22nd day of May, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of May, 2000. COPIES FURNISHED: John H. Davis, III 5770 Jady Place Cocoa, Florida 32926 Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32940 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner may be granted an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes, which would allow him to work in a position of special trust (i.e. youthful offender counseling) for the Department of Juvenile Justice.
Findings Of Fact On February 16, 1999, a request for a Preliminary Florida Criminal Information Center/National Criminal Information Center (FCIC/NCIC) and Division of Highway Safety and Motor Vehicle (DHSMV) Screening Check was submitted on behalf of Petitioner by Dawn Torres of Youth Service International, Cypress Creek Academy. The screening package contained an Affidavit of Good Moral Character signed by Petitioner and notarized on January 11, 1999, in which Petitioner indicated that he did not have a disqualifying criminal history. There is every reason to believe that this affidavit was actually signed by Petitioner on January 8, 1999, at the same time he signed a consent to background screening and a job application which described a prior "misdemeanor" of assault on an ex-girlfriend. (Respondent's Composite Exhibit 1). This means the affidavit was notarized improperly. Cypress Creek Academy is a youth rehabilitation facility located in LeCanto, Florida. On February 19, 1999, Petitioner's preliminary screening was rated as "favorable" based upon an FCIC (Florida) check only. Petitioner was therefore employed by Cypress Creek Academy on April 12, 1999. (Petitioner's Exhibit 1). An FBI Identification Record dated May 9, 1999, indicated Petitioner had pled guilty to, and been found guilty of, assault on June 30, 1994, and that he had been sentenced to six months' jail time (suspended), 12 months' probation, and attendance at the Mens' Anger Program. In a letter dated May 17, 1999, Petitioner was asked by DJJ to provide, within 30 days of receipt of the letter, certified copies of arrest reports and judicial dispositions referencing the assault charge. Petitioner submitted the requested information to DJJ. It showed that Petitioner was arrested on June 3, 1994, by the Fairfax, Virginia, Police Department for abduction and assault and battery on a minor (17 years of age). On June 30, 1994, Petitioner pled guilty to assault and battery in the Fairfax County, Virginia, Juvenile and Domestic Relations District Court and was then found guilty. He was sentenced to a six months' jail sentence (suspended) and 12 months' active probation; ordered to attend the Mens' Anger Program; and instructed to have "no violation towards victim." A Show Cause Summons (Criminal) was issued by Fairfax County, Virginia, on June 23, 1995, to Petitioner concerning his failure to attend the Mens' Anger Program and his failure to contact his probation officer from September 26, 1994, to March 20, 1995. On September 21, 1995, the Fairfax County, Virginia, Juvenile and Domestic Relations District Court found Petitioner guilty of contempt based upon his plea of guilty. He was sentenced to a jail term of 60 days (with 57 days suspended), placed on probation for an additional 12 months, and again ordered to attend the Mens' Anger Program. By departmental letter of June 22, 1999, DJJ notified Petitioner of his ineligibility for continued employment and his right to request a departmental exemption hearing. Simultaneously, Cypress Creek Academy was notified that Petitioner was ineligible/disqualified from employment as a youth counselor and that he must be immediately removed from direct contact with juveniles. However, according to Petitioner's evidence presented at hearing, Petitioner only worked at Cypress Creek Academy from April 12, 1999, until June 3, 1999. (Petitioner's Exhibit 1). Also, the Academy's director was unable to assess Petitioner's performance fully, since he had worked there less than two months, but the director felt Petitioner would be an asset, and if exempted, that Petitioner would be eligible for rehire. (Petitioner's Exhibit 1). Petitioner timely requested an exemption, which was denied by DJJ. He then timely requested this disputed-fact hearing. The circumstances surrounding the June 3, 1994, incident giving rise to disqualification were described by Petitioner as follows: In 1994, Petitioner, who was barely 21 years old, was living with his 17-year-old girlfriend and her mother. He and the girlfriend got into a dispute and she kicked him in the stomach. He instinctively lashed out and hit her, even though intellectually, he knew it was wrong to hit a woman. Petitioner believed that his girlfriend also should have been criminally charged, but that did not happen. Petitioner claimed that although his girlfriend bailed him out of jail and wanted to drop the charges, his public defender made him plead guilty against his own better judgment. Petitioner maintained that his "instinctive" reaction to hit back was due to having been a battered child. His sister confirmed a dysfunctional and abusive family history. Petitioner's NCCI report does not reveal any criminal charges against Petitioner since 1994. Petitioner completed the Mens' Anger Program in Virginia as of June 26, 1996, pursuant to the Court's 1995 suspended sentence, by attending 22 out of 24 sessions. His only excuse for his delay in attending this program (see Finding of Fact 10, above) was that he was trying to straighten himself out. Petitioner testified that he has completed his probation in Virginia, but he presented no corroboration thereof, either from his probation officer or from any other Virginia authority. This defect in Petitioner's presentation is of concern because he has had nearly 10 months since the exemption process began in which to obtain these records, if they exist. Petitioner denied that he attempted to camouflage his prior criminal record from either Cypress Creek Academy or DJJ. He reasonably pointed-out that if he had been actively attempting to hide his prior criminal record when he signed the January 11, 1999, affidavit stating that he had no prior criminal record, he would not also have signed a consent to background screening on January 8, 1999 and on the same date disclosed the details of the assault on his ex-girlfriend to his potential employer, describing it as a misdemeanor. (Respondent's Composite Exhibit 1). I have weighed the fact that Petitioner is a high school graduate who has completed one year of college (Respondent's Exhibit 1) against his representation that he just did not read the good moral character affidavit he signed, and I have compared the lengthy and complex single-spaced disclosure forms involved, including the affidavit, which lists a variety of felonies by their Florida Statute numbers. I have also considered the detail of Petitioner's disclosure of the facts of the assault but mischaracterization of it as a "misdemeanor" rather than a felony. I accept that Petitioner's failure to disclose that his prior criminal history in Virginia was a disqualifying felony was careless and irresponsible rather than a deliberate attempt to conceal his criminal record from the employer and DJJ. On the other hand, his carelessness and lack of responsibility with regard to the affidavit/oath do not speak favorably for his current good character when it applies to a position of counseling young offenders. Since 1995, Petitioner has married and fathered a child. Since leaving Virginia, Petitioner has worked as a security guard in Reno, Nevada, dealing with cash, personal safety of casino patrons, and safety of patrons' vehicles. Currently, Petitioner is a regular church-goer and is working 52 hours a week to support his family. Petitioner's wife testified that he is non-violent toward her, even if she hits him; that he "scares me because he's so religious"; that she gets mad because he does so much for others; and that he is a "real caring person" and a "good father." Petitioner's sister testified to Petitioner's being entirely non-violent since he became a church-goer.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Petitioner an exemption at this time and clearly stating therein upon what date it will consider a new application for exemption. DONE AND ENTERED this 30 day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 30th day of May, 2000.
