16-001987 Ronald J. Rosen vs. Department Of Management Services, Division Of Retirement
 Status: Closed
Recommended Order on Friday, October 21, 2016.


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Summary: Petitioner was convicted of felonies related to his employment and forfeited his FRS benefits.

1reject or modify an ALJ' s conclusions of law over which it has jurisdiction, but if it does so, it

21must state with particularity why it is doing so and why its conclusion is more reasonable than

38that in the recommended order. See id.

45Petitioner's exceptions do not comply with section 120.57, Florida Statutes. Petitioner's

56exceptions take the form of a memo without citation to the Recommended Order or the Record.

"72[A]n agency need not rule on an exception that does not clearly identify the disputed portion of

89the recommended order by page number or paragraph, that does not identify the legal basis for

105the exception, or that does not include appropriate and specific citations to the record." §

120120.57(1 )(k), Fla. Stat.

124Petitioner does not identify any specific paragraphs or page numbers of the ALJ' s

138recommended order or make specific citations to the record. Though Petitioner's exceptions do

151not take the form required by statute, they identify two different issues on which Petitioner

166argues the ALJ erred. This Final Order will address each issue as a separate exception. To the

183extent Petitioner's exemption was attempting to raise additional issues not identified herein,

195these will not be addressed for failure to comply with section 120.57(1)(k), Florida Statutes.

209Petitioner's Exception 1.

212In paragraph 2 of his exceptions, Petitioner states: "In his Recommended Order the

225Administrative Law Judge ("ALJ") determined that Respondent proved the nexus by relying on

240the Petitioner's Petition for Hearing, which suggested that he was a teacher at the time of the

257offenses. This was improper." The ALJ cited Petitioner's Petition in paragraph 1 of his

271Findings of Fact on page 4 ofhis Recommended Order.

280This is an administrative proceeding governed by chapter 28-106, Florida Administrative

291Code. In such a proceeding, the court relies upon the petition "to state the ultimate facts, to

308identify the facts that are in dispute, and to allege the facts that warrant, in the petitioner's

325opinion, reversal." Brookwood Extended Care Ctr. of Homestead, L.L.P. v. Agency for

337Healthcare Admin., 870 So. 2d 834, 840 (Fla. 3d DCA 2003) (construing rule 28-106.201,

351Florida Admin. Code).

354One of the purposes of the petition, therefore, is to frame the facts that will be in dispute

372at the hearing. Examination of Petitioner's Petition shows that the nexus of which Petitioner

386complains in his exemptions was not framed as a fact in dispute. Petitioner's Petition states,

"401Petitioner Rosen was an experienced educator employed with the Brevard County School

413Board. In that capacity he taught in a public elementary school." Petition 5. Petitioner's

427Petition then states , "While Petitioner Rosen has steadfastly denied the accusations of any

440criminal wrongdoing towards the minor students alleged to be victims - and continues to do so -

457he cannot deny the legal fact that he presently remains convicted of four (4) lewd molestation

473offenses." 8.

475In his Petition, Petitioner does not dispute the fact of his convictions for offenses

489committed in conjunction with his employment as a teacher. Instead, Petitioner's Petition argues

502whether those offenses can be treated as "specified offenses" under the relevant statute. Petition

51610-16.

517It is clear from a review of the record that the fact of Petitioner's employment as a

534teacher, and conviction of the predicate offenses while employed in that capacity, was not

548disputed prior to Petitioner's "nexus" arguments at hearing. The ALJ was entitled to rely upon

563the Petition to make a Finding of Fact concerning what was framed in that document as an

580undisputed issue of fact.

584Petitioner's Exception number 1 is denied.

590Petitioner's Exception 2.

593In paragraph 8 of his exceptions, Petitioner states: "The Administrative Law Judge also

606improperly relied upon the factual recitation in the Florida Fifth District Court of Appeal

620decision in Rosen v. State, 940 So. 2d 1155 (Fla. 5th DCA 2006)." The ALJ cited the Rosen

638case in paragraph 7 of his Conclusions of Law on page 6 ofhis Recommended Order.

653Though the hearing transcript does not include reference to the Rosen case, the

666Respondent cites the case in its Proposed Recommended Order. As State of Florida decisional

680law, the case is subject to compulsory judicial notice. See § 90.201(1), Fla. Stat. Furthermore,

695the ALJ cited the case as further support for the undisputed fact of the Petitioner's employment

711and its relationship to his crimes.

717Petitioner's Exception number 2 is denied.

723FINDINGS OF FACT

726Respondent hereby adopts the Findings of Fact contained in the Recommended Order as

739its findings in this Final Order.

745CONCLUSIONS OF LAW

748Respondent hereby adopts the Conclusions of Law contained in the Recommended Order

760as its conclusions in this Final Order.

767ORDERED AND ADJUDGED:

7701 . The Recommended Order issued in this case is adopted as described herein and is

786incorporated herein by reference.

7902. Based upon the Findings of Fact and Conclusions of Law contained in the

804Recommended Order and adopted by the Respondent in this Final Order, Petitioner Ronald J .

819Rosen's Petition is DENIED. Petitioner's rights and benefits under the Florida Retirement

831System are forfeited except for the return of any accumulated contributions.

8423. This final order shall become effective on the date of filing with the agency clerk

858of the Respondent.

861DONE and ORDERED on this 2) day of __ 2018.

871ERIN ROCK, Secretary

874Department ofManagement Services

8774050 Esplanade Way, Suite 285

882Tallahassee, Florida 32399

885Copies to:

887Thomas D. Sommerville, Esq.

891Law Office ofThomas D. Sommerville, P.A.

897820 North Thornton A venue

902Orlando, FL 32803

905Thomas E. Wright

908Assistant General Counsel

911Department of Management Services

9154050 Esplanade Way, Suite 160

920Tallahassee, FL 32399-0950

923T: 850-414-7648

925F: 850-922-6312

927tommy. wright@dms.myflorida.com

929NOTICE OF RIGHT TO APPEAL

934Unless expressly waived by a party such as in a stipulation or in other similar forms of

951settlement, any party substantially affected by this final order may seek judicial review by filing

966an original notice of appeal with the agency clerk of the Department of Management Services,

981and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate

997district court of appeal. The notice of appeal must be filed within thirty (30) days of rendition of

1015this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section

1029120.68, Florida Statutes.

1032Certificate of Clerk:

1035Filed in the Office of the Agency

1042Clerk of the Department of Management

1048Services on this CX day of

1054___.,.,.._---'1!"'---=---fC+----' 20 18.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/08/2018
Proceedings: Notice of Appeal filed.
PDF:
Date: 05/25/2018
Proceedings: Agency Final Order
PDF:
Date: 05/25/2018
Proceedings: Agency Final Order filed.
PDF:
Date: 02/06/2018
Proceedings: Order Declining Remand.
PDF:
Date: 02/02/2018
Proceedings: Respondent's Response to Order of Remand filed.
PDF:
Date: 02/02/2018
Proceedings: Response to Order of Remand filed.
PDF:
Date: 01/26/2018
Proceedings: Order to State Positions.
PDF:
Date: 01/17/2018
Proceedings: Order of Remand (Request for ALJ) filed.
PDF:
Date: 11/07/2016
Proceedings: Petitioner's Exceptions to Administrative Law Judge's Recommended Order filed.
PDF:
Date: 10/21/2016
Proceedings: Recommended Order
PDF:
Date: 10/21/2016
Proceedings: Recommended Order (hearing held August 31, 2016). CASE CLOSED.
PDF:
Date: 10/21/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/17/2016
Proceedings: Respondent's Proposed Recommended Order filed.
Date: 10/06/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 09/12/2016
Proceedings: Notice of Ordering Transcript filed.
PDF:
Date: 09/09/2016
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 09/06/2016
Proceedings: Statement of Person Administering Oath (Dale Young) filed.
Date: 08/31/2016
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/30/2016
Proceedings: Order Allowing Testimony by Telephone.
PDF:
Date: 08/29/2016
Proceedings: Motion to Allow Testimony by Telephone filed.
PDF:
Date: 08/26/2016
Proceedings: Respondent's Amendment to Prehearing Stipulation filed.
PDF:
Date: 08/25/2016
Proceedings: Respondent's Notice of Substitution of Counsel filed.
PDF:
Date: 06/02/2016
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for August 31, 2016; 9:30 a.m.; Orlando, and Tallahassee, FL).
PDF:
Date: 06/01/2016
Proceedings: Submittal of Proposed Dates for Rescheduled Final Hearing filed.
PDF:
Date: 05/27/2016
Proceedings: Order Granting Continuance (parties to advise status by June 3, 2016).
PDF:
Date: 05/26/2016
Proceedings: Respondent's Motion for Continuance filed.
PDF:
Date: 05/25/2016
Proceedings: Parties' Joint Stipulation filed.
PDF:
Date: 04/25/2016
Proceedings: Notice of Appearance (Thomas Sommerville) filed.
PDF:
Date: 04/20/2016
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/20/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for June 3, 2016; 9:30 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 04/19/2016
Proceedings: Agreed Response to Initial Order filed.
PDF:
Date: 04/12/2016
Proceedings: Initial Order.
PDF:
Date: 04/04/2016
Proceedings: Respondent's Motion to Reopen File filed. (FORMERLY DOAH CASE NO. 10-0101)
PDF:
Date: 01/11/2010
Proceedings: Agency action letter filed.
PDF:
Date: 01/11/2010
Proceedings: Petition for Hearing filed.
PDF:
Date: 01/11/2010
Proceedings: Respondent's Notice of Election to Request Assignment of Administrative Law Judge filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
04/12/2016
Date Assignment:
04/12/2016
Last Docket Entry:
06/08/2018
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):