07-002192 Russell S. Lawler vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, January 30, 2008.

Summary: Respondent failed to get evidence admitted over hearsay and relevancy objections, which might have shown Petitioner violated statute by the type of felony committed and caused retirement forfeiture. Therefore, there is no forfeiture.

Case No. 07-2192

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSSELL S. LAWLER, ) ) ) ) ) ) ) ) ) ) ) )

Petitioner, RECOMMENDED ORDER

vs.

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

This cause came on for formal proceeding and hearing, as

noticed, in Jacksonville, Florida, on August 22, 2007, before

P. Michael Ruff, a duly-designated Administrative Law Judge of

the Division of Administrative Hearings. The appearances were as

follows:

APPEARANCES

For Petitioner: Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

For Respondent: Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether

the Petitioner's rights and benefits under the Florida Retirement

System (FRS), should be forfeited for the reasons alleged in the

Notice of Forfeiture of Retirement Benefits dated March 12, 2007.

PRELIMINARY STATEMENT

This cause has its origin in a Notice of Forfeiture of

Retirement Benefits issued on March 12, 2007, by the Respondent,

Department of Management Services, Division of Retirement

(Division). In that Notice the above-named Petitioner was

advised that the Respondent had decided to forfeited his rights

and benefits under the FRS pursuant to the provisions of Section

112.3173, Florida Statutes (2003). 1/ The Agency action at issue

was based upon the Respondent learning that the Petitioner may

have been convicted in a state court proceeding of a certain

third degree felony. On April 1, 2007, the Petitioner filed a

timely request for administrative hearing to contest the

proposed agency action. The initial Petition filed by the

Petitioner was dismissed without prejudice to re-filing an

Amended Petition concerning certain insufficiencies in the

Petition. Petitioner thereupon filed an Amended Petition on

April 26, 2007, and the matter was transferred to the Division

of Administrative Hearings for formal proceeding. The case was

duly assigned to the undersigned Administrative Law Judge for

formal proceeding and conducting of a formal hearing pursuant to

Section 120.57(1), Florida Statutes.

The cause came on for hearing as noticed. The Petitioner

called no witnesses, but offered Petitioner's Exhibits one

through five which were received in evidence. The Respondent,

with the burden of proof, presented the testimony of one witness

and offered seven exhibits for admission into evidence.

Respondent's Exhibits one and two, the Arrest and Booking

Report, and the Criminal Information by the state attorney for

the (Fourth Circuit), Duval County, were not admitted on grounds

of being irrelevant and hearsay, and not coming within any

recognized hearsay exception raised by the Respondent's counsel.

Respondent's exhibits one and two are irrelevant since they

refer to an arrest made by a law enforcement officer and charges

filed by the state attorney. They are not evidence of any

conviction of a crime for purposes of the issue of forfeiture of

benefits as contemplated by Section 112.3173, Florida Statutes.

Concerning the hearsay character of the two exhibits, it was

determined that they were obtained and maintained in

contemplation of litigation and no sufficient foundation was

offered to show that they complied with the business records

exception to the hearsay rule, which had been asserted by

Respondent's counsel in response to objection. Thus, they are

hearsay. Ruling on that issue was reserved until it could be

determined if competent, non-hearsay testimony or evidence was

adduced whereby the two exhibits could be considered

corroborative hearsay, as contemplated by Section 120.57(1)(c),

Florida Statutes. Since the only evidence of which they could

be corroborative or explanatory is Respondent's Exhibit seven,

the deposition of Deputy Sheriff Lavalley, and since, for

reasons delineated below, that deposition cannot be admitted

into evidence, Respondent's Exhibits one and two are not

admitted for any purpose offered. Because they are irrelevant

the question of the quality of their hearsay character is

immaterial in any event.

The previously reserved ruling on Respondent's exhibits one

and two is now entered and, after consideration of post-hearing

written arguments, they are excluded from evidence. The

Respondent's exhibits one and two are not admissible for the

further reason that they did not come within the ambit of the

public records or government record exception to the hearsay

rule contained at Section 90.803.(8), Florida Statutes.

Initially it is pointed out that this statutory section

specifically excludes, in criminal cases, matters observed by

police officers and other law enforcement personnel and that

police reports in such proceedings are not admissible against a

defendant. The limitation is based on the belief, according to

Professor Charles Earhardt in Florida Evidence that observations

by officers at the scene of a crime or when a defendant is

arrested are not as reliable as observations by public officials

in other cases because of the adversarial nature of the

confrontation between the police and the defendant. See United

States v. Puente , 826 F.2d 1415, 1418 (5th Cir. 1987). Although

these two exhibits are not offered under the public records

exception herein in a criminal proceeding, but rather an

administrative one, the inherent flaw in reliability potentially

present in the reports of law enforcement officers which

prevents them under the above statutory section from being

admitted as a public record exception to the hearsay rule would

have the same unreliable quality attached in this proceeding, as

in a criminal proceeding. Moreover, however, under the Florida

Evidence Code at Section 90.803(8), Florida Statutes, records of

a public body that rely upon information supplied from outside

sources or records which contain evaluations or statements of

opinion by a public official are inadmissible hearsay under the

Florida Evidence Code. See Lee v. Department of Health and

Rehabilitative Services , 698 So. 2d 1194, 1201 (Fla. 1997),

wherein it was held that a written report of an HRS employee who

investigated an incident was inadmissible under the above

section of the evidence code as being a record supplied by

outside sources, or which contained evaluations or statements of

opinion by a public official and which are inadmissible under

the public records exception under Section 90.803(8), Florida

Statutes. The court said in that case: ". . . in Florida,

rather than offering this type of record, a witness must be

called who has personal knowledge of the facts." Here the

arrest report, as well as the state attorney's information, in

addition to being irrelevant because they don't provide

probative evidence that the Petitioner herein sustained a

conviction of a felony enumerated in the operative statute

involved in this proceeding, clearly contain evaluations or

opinions of a public official. Therefore, under the referenced

authority, they cannot be admitted into evidence under the

public records exception to the hearsay rule either.

Respondent's Exhibit three is a plea of guilty and

negotiated sentence. An objection to that exhibit was made on

the basis of hearsay and authenticity. The parties given an

opportunity to brief the question of its admissibility in terms

of the hearsay issue. Concerning the objection to

authentication, the document was determined to be permissibly

authenticated because, although not certified, as would normally

be required, the circumstances depicted on the face of the

document, and surrounding its obtaining and sponsorship by the

Respondent's counsel, show circumstantial authenticity such that

it was deemed authentic pursuant to Section 90.901, Florida

Statutes. Further, under the germane case law, a plea of guilty

in a prior criminal proceeding is admissible in a subsequent

proceeding as an admission by a party opponent. See Boshnack v.

Worldwide Rent-A-Car, Inc. , 195 So. 2d 216, 218-19 (Fla. 1967)

and Stevens v. Duke , 42 So. 2d 361, 363 (Fla. 1949). The court

in Stevens went on to say, however, that such a plea of guilty

is not conclusive, but may be explained by the party against

whom it is offered in the subsequent proceeding and that the

basis of admissibility is that it is a declaration against

interest, rather than the conviction serving as independent

objective evidence. So, on this basis, Respondent's exhibit

three, the plea of guilty, although not certified, is admitted

on the basis of being a party admission for purposes of Section

90.803.(18)(a), Florida Statutes.

Respondent's Exhibit four is the Judgment of Conviction.

The Judgment is a certified copy and meets the test for

authentication. The Respondent contends that the Judgment of

Conviction is a public record and is admissible under that

exception to the hearsay rule. However, it has been determined

in Napoli v. State , 596 So. 2d 782, 786 (Fla. 1st DCA 1992) that

a Judgment of Conviction is not a public record for purposes of

Section 90.803(8), Florida Statutes. The Florida Evidence Code

does not contain an exception to the hearsay rule for judgments

of prior convictions. Under Florida law a conviction is not

admissible in subsequent litigation to prove the truth of some

essential element in the conviction. See also Boshnick v.

Worldwide Rent-A-Car , supra . "The law is well established that

a Judgment of Conviction of a criminal offense, whether based on

a plea of guilty or nolo contendere , is not admissible in a

subsequent civil proceeding as proof of the facts on which it is

based." See also Nunez v. Gonzalez , 456 So. 2d 1336, 1338 (Fla.

2nd DCA 1984). ("It is well settled that a Judgment of

Conviction cannot be introduced into evidence in a civil action

to establish the truth of the facts upon which it was

rendered").

Respondent's Exhibit five is the Judgment and Restitution

Order. It is not certified and could be determined to not be

properly authenticated. The undersigned determined at the

hearing, however, that the circumstances of its proffer and

possession by the Respondent, together with the circumstances

depicted on the face of the judgment, showed sufficient

circumstantial indicia of authentication to allow it to be

circumstantially authenticated pursuant to Section 90.901,

Florida Statutes.

The problem remains, however, that the Judgment and

Restitution Order is hearsay. It does not come within the

public record exception to the hearsay rule, and thus, in view

of the authority cited above with regard to Respondent's exhibit

four, as well as Charles Ehrhardt: Florida Evidence 2005

edition, Section 803.22(a), it is determined that therefore,

Respondent's exhibits four and five, (after reviewing the

arguments of the parties submitted in writing, post-hearing),

are not admissible into evidence for proof of the truth of the

facts upon which they were rendered. Respondent's Exhibit six

was admitted.

Petitioner's Exhibit seven is the deposition of Duval

County Sheriff's Deputy Lavalley. It has been offered into

evidence as "former testimony" for purposes of Section

90.803(22) and 90.804(2), Florida Statutes. After consideration

of arguments of the parties submitted, it is determined that the

deposition is not admitted into evidence. This is based on the

fact that there was no showing that the deputy was an

unavailable witness, and on authority of Grabau v. Department of

Health , 816 So. 2d 701, 709 (Fla. 1st DCA 2002). That decision

held that Section 90.803.(22), Florida Statutes, is

unconstitutional based upon a violation of the Separation of

Powers Doctrine, as an infringement on the Florida Supreme

Court's authority to establish rules of procedure for courts.

This is treated in more detail in the Conclusions of Law infra .

Upon conclusion of the hearing the parties elected to have

the record of the hearing transcribed and to submit proposed

recommended orders, upon an extended schedule, including the

opportunity to brief and argue the evidentiary issues concerning

the exhibits referenced. The Proposed Recommended Orders have

been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Division of Retirement (Division) is an Agency of

the State of Florida charged with the responsibility of managing,

governing and administering the Florida Retirement System (FRS)

on behalf of the Department of Management Services.

2. The FRS is a public retirement system as defined in

Florida law. It provides benefits to local and state employees,

including teachers, state legislators, local public officials,

and public employees employed by local or state agencies which

are members of the FRS.

3. The Petitioner, Russell S. Lawler, was employed as a

state employee by the Department of Health from August 1983 until

he resigned his position in January 2004. Because he was

employed by the Department of Health, the Petitioner became a

participant in the FRS public retirement system as of August

1983. His benefits in the FRS became vested after 10 years, or

in August 1993.

4. On March 12, 2007, the Respondent Agency sent the

Petitioner a Notice of Action to Forfeit Retirement benefits, in

evidence as Respondent's exhibit six. The Division thus advised

the Petitioner that it was proceeding under Section 112.3173(3),

Florida Statutes, which provides that a public employee who is

convicted of specified offenses committed prior to retirement, or

who is terminated by reason of admitted commission, aid, or

abetment of a specified offense, will forfeit all rights and

benefits under the FRS. The Notice went on to list the six

specified offenses in Section 112.3173(2)(e), Florida Statutes,

which provide for the forfeiture of retirement benefits. The

specified offenses include the committing, aiding, or abetting of

embezzlement of public funds; of theft by a public officer or

employee from his or her employer; bribery in connection with

public employment; any felony specified in Chapter 838, except

Sections 838.15 and 838.16, Florida Statutes; the committing of

an impeachable offense, or

The committing of any felony by a public

officer or employee who, willfully and with

intent to defraud the public or the public

agency for which the public officer or

employee acts or in which he or she is

employed of the right to receive the

faithful performance of his or her duty as a

public officer or employee, realizes or

obtains, or attempt to realize or obtain, a

profit, gain, or advantage for himself or

herself or for some other person through the

use or attempted use of the power, rights,

privileges, duties, or position of his or

her public office or employment position.

Ultimately, through the testimony of the Respondent's sole

witness, Mr. Gaines and through Respondent's concession in its

Proposed Recommended Order, the Division elected to proceed

against the Petitioner solely under Section 112.3173(2)(e)6.,

Florida Statutes, the above-quoted statutory provision, which is

the so-called "catch all" provision.

5. After receiving this Notice from the Division the

Petitioner submitted a timely Petition challenging the forfeiture

of his retirement benefits on April 2, 2007. On April 26, 2007,

the Petitioner submitted an Amended Petition to the Division,

which was ultimately referred to the Division of Administrative

Hearings and the undersigned Administrative Law Judge, who

conducted the hearing on the above date.

6. The Respondent Division, in essence, maintains that the

Petitioner, who was employed as a pharmacist by the Department of

Health, stole certain controlled substances or drugs from the

Department of Health pharmacy where he was employed, and was

convicted of illegal possession of controlled substances. It

contends that such conduct constitutes violation of paragraph six

of the above-quoted statutory provision, is the commission of a

felony violative of that provision, and that forfeiture of his

retirement benefits is appropriate.

7. At the hearing the Respondent sought to introduce the

following documents into evidence: the arrest and booking report

dated December 31, 2003, (Respondent's Exhibit one); the state

attorney's information dated January 16, 2004, as Respondent's

Exhibit two; the plea of guilty entered by the Petitioner in that

underlying criminal case, and the negotiated sentence, which is

one document, dated March 14, 2004, as Respondent's Exhibit

three; the Judgment of Conviction dated March 15, 2004, as

Exhibit four and the related Judgment and Restitution Order of

April 5, 2004, as Respondent's exhibit five.

8. The Respondent was not the custodian of the records for

the Respondent's Exhibits one, two, three, four, and five, which

were obtained from the Clerk of Circuit Court in and for Duval

County, Florida, and not from the Respondent's own maintained

records. No foundation was laid for their admission under the

business records exception to the hearsay rule, because no

witness was called who could lay such a foundation. Moreover,

they were clearly and admittedly acquired by the Respondent

Division solely for the purpose of pursuing the forfeiture action

against the Petitioner, the instant litigation. They were not

shown to be business records maintained in the regular course of

business by an appropriate foundation witness. They are also

proffered as being admissible within the public records exception

to the hearsay rule contained in Section 90.803(4), Florida

Statutes, and as party admissions and, for that reason,

admissible over hearsay objection.

9. The admissibility issues are dealt with in the

Preliminary Statement and in the Conclusions of Law below.

Respondent's Exhibits one and two are inadmissible for the

reasons delineated herein. Respondent's Exhibits three, four,

and five have limited admissibility. Exhibit three, the Plea of

Guilty and Negotiated Sentence is admissible as a party

admission. The Judgment of Conviction, Respondent's Exhibit

four, and the related Judgment and Restitution Order,

Respondent's Exhibit five, are deemed, under Florida law, to be

inadmissible under the public records exception to the hearsay

rule contained in Section 90.803(4), Florida Statutes. They are

not admissible to show the underlying facts upon which they are

based or rendered. As judgments they have specific limited

statutory admissibility under Section 92.05, Florida Statutes,

merely to show that they were entered and they are valid. There

is also limited authority to the effect that the Judgment of

Conviction, to the extent that it is based upon the Guilty Plea,

and therefore subsumes it, presumably can be admitted as a party

admission. Since the guilty plea in the underlying criminal case

related to this proceeding has been admitted as a party

admission, such in this case is a distinction without any

evidential or legal difference.

10. The Respondent also proffered into evidence the

deposition transcript of Deputy Chris Lavalley who is an officer

of the Duval County Sheriff's Office. The deposition was noticed

on July 19, 2007, with the deposition to be conducted (which it

was) on August 13, 2007. The notice advised the Petitioner that

the deposition was being taken for purposes of discovery, for use

at trial, or for any other purpose for which it may be used under

the applicable laws of Florida. On July 23, 2007, the Respondent

noticed its serving of Answers to the Petitioner's

Interrogatories in which the Respondent did not list Deputy

Lavalley as a witness in that discovery response. During the

deposition and thereafter the Respondent never notified the

Petitioner's counsel that Detective Lavalley would not be called

or available as a witness at the hearing, which was scheduled for

August 22, 2007.

11. Detective Lavalley was the author of the arrest and

booking report contained in Respondent's exhibit one and was the

arresting officer in the underlying criminal proceeding related

to this forfeiture proceeding. The Respondent and Respondent's

counsel made no showing before, during, or after the hearing in

this case that Detective Lavalley was an unavailable witness as a

predicate to an attempted introduction of Detective Lavalley's

deposition (Respondent's Exhibit seven). The record reflects

that Detective Lavalley is, or was, at times pertinent, an

officer of the Duval County Sheriff's Office and this hearing was

conducted in Jacksonville, in Duval County, Florida. There was

no showing that he was beyond 100 miles from the hearing site or

any other reason why he would be an unavailable witness. 12.

The Respondent presented as its sole witness Mr. Ira Gaines, a

benefits administrator in the Division's Bureau of Benefits

Calculation. Mr. Gaines had no personal knowledge or competency

to testify concerning any facts underlying the acts for which the

Petitioner received the felony conviction at issue. He was not

the custodian of the records of the Duval County Clerk or Circuit

Court. He did establish he validly had access to the Division's

own records in the pursuit of his regular duties and business for

the Division and his bureau. He thus was able to establish that

the name of the Petitioner and the Petitioner's Social Security

number in the records of the Division, of which he had direct

knowledge and access to, were the same as those depicted on the

Respondent's exhibits. It was thus established that the

defendant in the underlying criminal proceeding at issue is the

same Russell S. Lawler as the Petitioner in this case, who is

subject to this forfeiture proceeding.

13. Mr. Gaines testified that in order for a retiree's

benefits to be subject to forfeiture, that the retiree must be

convicted of "a felony that related with the employment of that

employer . . ." He also established, as the Respondent has

conceded, that Section 112.3173(2)(e)6., Florida Statutes, is the

specific and only offense for which forfeiture of the

Petitioner's retirement benefits is sought in this proceeding.

14. The Petitioner pled guilty to possession, actual or

constructive, of a controlled substance (codeine) and is shown by

the related judgment of conviction to be convicted of a third-

degree felony in violation of Section 893.13(6)(a), Florida

Statutes. Exhibit four shows that he was adjudicated guilty of

such. The plea of guilty and negotiated sentence contained in

Respondent's Exhibit three also shows that the court was to

reserve jurisdiction for restitution. Respondent's Exhibit five,

the Judgment and Restitution Order, shows restitution in the

amount of $860.00 was to be made to the Department of Health and

the Victim Compensation Trust Fund of the Office of the Attorney

General.

15. The above findings are all that the Respondent's

evidence shows concerning the felony of which the Petitioner was

convicted. The Respondent did not adduce any substantial,

persuasive evidence or witnesses concerning the nature of the

Petitioner's duties at the Department of Health or how those

duties had any relationship to the crime the Respondent alleges

to be the basis for the forfeiture action herein.

16. The above admissible evidence does not show, for

instance, where the Petitioner obtained the illegal controlled

substances, possession of which, actual or constructive, he was

convicted of, nor is there preponderant, persuasive evidence to

show that, even though the order in exhibit five requires

restitution to the Department of Health, what the restitution was

for or for what purpose it was to be made. To presume more facts

than shown on the face of that order would be speculation, and

would not be based on admissible evidence. It could be for a

number of reasons, such as to pay investigative costs to the

Department of Health, or for other reasons, since it was based on

a negotiated plea and restitution.

17. Even if Exhibit five could be deemed to show that the

Department of Health was a victim of a crime committed by the

Petitioner, there was no preponderant, persuasive evidence by

which it might be found that the Petitioner actually deprived his

employer of anything of value, or acted at any time with the

intent to defraud his employer, the public, and the Department of

Health of the right to receive the faithful performance of his

duties as a public officer or employee. There was no

preponderant, persuasive evidence to show that the Petitioner

realized, obtained, or attempted to realize or obtain a profit,

gain, or advantage for himself or for some other person, by the

use or attempted use of the power, rights, privileges, duties, or

position of his public office or employment position.

18. There was simply no evidence adduced to show what his

duties were or to show how the function of his duties or his

employment position might have a relationship to the crime for

which he pled guilty and was convicted. Thus, there is no

preponderant, persuasive, admissible evidence which is competent

to show that a specified offense, as contemplated in Section

112.3173(2)(e)1-6, Florida Statutes, was committed.

19. The Petitioner has filed a Motion for Attorney's Fees

pursuant to Section 57.105, Florida Statutes, and provided the

Respondent notice of his intent to seek attorney's fees under

that section.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

21. Article II, Subsection 8(d), Florida Constitution

(1976), provides in pertinent part:

SECTION 8: Ethics in government.--A public

office is a public trust. The people shall

have the right to secure and sustain that

trust against abuse. To assure this right:

* * *

(d) Any public officer or employee who is

convicted of a felony involving a breach of

public trust shall be subject to forfeiture

of rights and privileges under a public

retirement system or pension plan in such

manner as may be provided by law.

22. Section 112.311, provides in pertinent part:

(1) INTENT.--It is the intent of the

Legislature to implement the provisions of

s. 8(d), Art. II of the State Constitution.

(2) DEFINITIONS.--As used in this section,

unless the context otherwise requires, the

term:

(a) 'Conviction' and 'convicted' mean an

adjudication of guilt by a court of

competent jurisdiction; a plea of

guilty or of nolo contendere; a jury verdict

of guilty when adjudication of guilt is

withheld and the accused is placed on

probation; or a conviction by the Senate of

an impeachable offense.

(b) 'Court' means any state of federal

court of competent jurisdiction which is

exercising its jurisdiction to consider a

proceeding involving the alleged commission

of a specified offense.

(c) 'Public officer or employee' means a

officer or employee of any public body,

political subdivision, or public

instrumentality within the state.

(d) 'Public retirement system' means any

retirement system or plan to which the

provisions of part VII of this chapter

apply.

(e) 'Specified offense' means:

* * *

1. The committing , aiding, or abetting of

an embezzlement of public funds;

2. The committing, aiding, or abetting of

any theft by a public officer or employee

from his or her employer;

3. bribery, in connection with the

employment of a public officer or employee;

4. Any felony specified in Chapter 838,

except ss. 838.15 and 838.16;

5. The committing of an impeachable

offense; or

6. The committing of any felony by a public

officer or employee who, willfully and with

intent to defraud the public or the public

agency for which the public officer or

employee acts or in which he or she is

employed of the right to receive the

faithful performance of his or her duty as a

public officer or employee, realizes or

obtains, or attempts to realize or obtain, a

profit, gain, or advantage for himself or

herself or for some other person through the

use or attempted use of the power, rights,

privileges, duties, or position of his or

her public office or employment position.

(3) FORFEITURE.--Any public officer or

employee who is convicted of a specified

offense committed prior to retirement, or

whose office or employment is terminated by

reason of his or her admitted commission,

aid, or abetment of a specified offense,

shall forfeit all rights and benefits under

any public retirement system of which he or

she is a member, except for the return of

his or her accumulated contributions as of

the date of termination.

23. The Division contends that all of Mr. Lawler's rights

and benefits under the FRS must be forfeited pursuant to Section

112.3173(2)(e)6. It asserts that Mr. Lawler was convicted of a

felony as a public employee whereby he willfully and with intent

to defraud the public or the public agency for which he was

employed of the " . . . right to receive the faithful performance

of his her or duty as a public officer or employee," and that he

realized, obtained or attempted to realize or obtain a profit,

gain, or advantage for himself through the use or attempted use

of the power, rights, privileges, and duties of his employment

position. The Division has taken the position during the

testimony at hearing, and in its proposed recommended order, that

it is proceeding under sub-paragraph six of the above-quoted

statutory definitions of "specified offense," the so-called

"catch all provision." It is not contending that the

Petitioner has committed a felony involving the offenses listed

in paragraph 1-5 of the above-quoted statute.

24. The Division, as the party asserting that Mr. Lawler's

rights and benefits under the FRS should be forfeited bears the

burden of proof during this proceeding. See Florida Department

of Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981)("In accordance with the general rule,

applicable in court proceedings, 'the burden of proof, apart from

statute, is on the party asserting the affirmative of an issue

before an administrative tribunal.' Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977)").

25. The statutory forfeiture provision at issue in this

case is not penal and does not involve disciplinary action

against a licensee. See Busbee v. State, Division of Retirement ,

685 So. 2d 914, 918 (Fla. 1st DCA 1986)(Statutory FRS pension

forfeiture provision does not impose punishment or involve

disciplinary action). The standard of proof, therefore, is

"preponderance of the evidence." See § 120.57(1)(j), Fla. Stat.

(2007) ("Findings of fact should be based upon a preponderance of

the evidence, except in penal and licensure disciplinary

proceedings or except as otherwise provided by statute . . .").

26. The Respondent agency has failed to meet that burden

and prove facts which would demonstrate that the Petitioner has

committed a specified offense, as enumerated and described in the

above statutory authority under which the Respondent is

proceeding. This is because, after allowing the parties to brief

the hearsay, relevance and authentication issues, raised by

objection as to the Respondent's exhibits, or most of them, the

Respondent's Exhibits one, two, and seven are deemed inadmissible

based upon being inadmissible hearsay or irrelevant. Exhibits

four and five, the judgments, are not admissible for proof of the

truth of the facts underlying the rendition of the judgments.

Petitioner's Exhibit three, the Plea of Guilty and Negotiated

Sentence is deemed admissible based on being a party admission,

as an exception of the hearsay rule. The reasons are delineated

below:

Detective Lavalley's deposition (Respondent's Exhibit 7)

27. Detective Lavalley's deposition, the deposition of the

arresting officer concerning the underlying criminal matter is

inadmissible hearsay. The Florida Rules of Civil Procedure,

1.330(a)(3), prohibits the introduction of a deposition at a

trial or hearing unless the witness is unavailable or upon other

exceptional circumstances. See State of Florida Agency for

Health Care Administration, Board of Medicine v. Peter Alagona,

M.D. , DOAH Case No. 95-2467 (1996). The circumstances whereby a

deposition may be permitted under Florida Rule of Civil

Procedure 1.330(a)(3) concern witness unavailability due to

illness, age, and infirmity, or imprisonment, or if "the witness

is at a greater distance than 100 miles from the place of trial

or hearing." Moreover, a deposition is admissible under this

rule only insofar as it is admissible under the rules of

evidence. The deposition is hearsay and must comport with the

two hearsay exceptions contained in Section 90.804(2)(a),

Florida Statutes, and 90.803(22), Florida Statutes, concerning

when the deposition might be admissible as "Former Testimony."

28. Pursuant to Section 90.804(2)(a), a deposition may be

introduced into evidence only upon a showing that the witness is

unavailable. Conversely, Section 90.803(22) requires no showing

of witness unavailability before a deposition may be admitted as

former testimony, but both hearsay rules apply to a deposition

taken in the same or another proceeding and require that the

party against whom the deposition is offered be identical to the

party with the same interest in the prior proceeding or

deposition or its successor in interest, and that it had "an

opportunity or similar motive to develop the testimony by

direct, cross, or re-direct examination."

29. In the case of Grabau v. Department of Health, Board

of Psychology , 816 So. 2d 701, 709 (Fla. 1st DCA 2002), the

court found that Section 90.803(22), is unconstitutional because

it violates the separation of powers by usurping the Florida

Supreme Court's constitutional authority to implement rules of

procedure for courts. Thus, the court held that the

introduction of a deposition as former testimony in a hearing

without a showing of the witness's unavailability, would violate

due process of law because of conflict with Florida Rules of

Civil Procedure 1.330. The Florida courts have also ruled that

depositions violative of Rule 1.330 are inadmissible in civil

proceedings. See Jones v. R.J. Reynolds Tobacco Co. , 830 So. 2d

854, 855 (Fla. 2d DCA 2002)(trial court did not err in finding

depositions introduced under hearsay rule 90.803(22)

inadmissible in a civil trial); Collins v. Timber , 536 So. 2d

351, 352 (Fla. 1st DCA 1988)(error for court to rely upon

deposition testimony where deponent's absence at hearing "not

shown to be excused" by Rule 1.330(a)(3); Friedman v. Friedman ,

764 So. 2d 754, 755 (Fla. 2d DCA 2000)(discovery deposition

inadmissible as substantive evidence unless it satisfies

requirements of Rule 1.330(a)(3), which governs former testimony

hearsay rule 90.803(22).

30. Detective Lavalley's deposition is not admissible

because Section 90.803(22) has been determined to violate the

Florida Constitutional provision that rules of procedure have to

be adopted by the Florida Supreme Court. See Grabau , 816 So. 2d

709 ("amended statute is unconstitutional as an infringement on

the authority conferred on the Florida Supreme Court . . . and

denies due process"); Jones , 830 So. 2d 855, citing In Re:

Amendments to the Florida Evidence Code, 782 So. 2d 339, 342

(Fla. 2000)(supreme court "refus[ed] to adopt section 90.803(22)

as a rule of evidence, expressing 'grave concerns' about the

statute's constitutionality"). Since evidence in an

administrative proceeding may support a finding of fact only if

admissible in Florida courts over objection, the

unconstitutionality of 90.803(22), as applied to the

circumstances surrounding the proffer of the deposition, would

prevent Detective Lavalley's deposition from being relied upon

as evidence by the administrative law judge in this proceeding.

31. In this case, the deposition of Detective Lavalley's

was introduced by the Respondent without any showing that the

detective was unavailable under Rule 1.330(a)(3). Moreover,

although the deposition was reportedly noticed by the Respondent

for "purposes of discovery, for use at trial . . . " neither

Respondent's counsel nor Detective Lavalley indicated during the

deposition or afterward that he would not or could not be made

available at the hearing. In fact, the Respondent did not show

that any attempt was made to procure the appearance of Detective

Lavalley at the hearing, even though the hearing took place in

Jacksonville and Detective Lavalley at times pertinent hereto

has been a member or officer of the Jacksonville sheriff's

office, located in Duval County, well within 100 miles of the

hearing site. As of the time that Detective Lavalley was

deposed, Respondent had failed to name him as a witness in its

responses to interrogatories requesting the names of each

witness whom the Respondent expected to testify. See

Petitioner's Exhibit 3. The Respondent's responses to

interrogatories were served four days before the Respondent

issued the notice of Detective Lavalley's deposition, issued on

July 19, 2007. It is not necessary that a witness deposed for

discovery purposes also be used at trial, since deposition

testimony may also be used solely for impeachment or rebuttal of

a witness or in cases where the witness is unavailable. Thus,

the Respondent's noticing of the deposition for "purposes of

discovery, for use at trial . . ." did not give adequate notice

to the Petitioner that it did not plan to produce Detective

LaValley as a witness at the hearing.

32. Inasmuch as the Petitioner's counsel was not informed

that Detective Lavalley would be unavailable or that the

Respondent's counsel did not intend to call him in person for

the hearing, the Petitioner's counsel is deemed to have lacked

the same "motive" to cross-examine him as he would have had in

circumstances where he knew that Detective Lavalley would be

unavailable at the hearing. See Bobby C. Billie and Shannon

Larsen v. St. Johns River Water Mgmt. Dist. and Marshall Creek

Cmty, Dev. Dist. , DOAH Case No. 03-1881 (2004)(party unaware

that expert witness would be unavailable at trial lacked same

motive to question expert as in circumstances where party seeks

to preserve testimony for trial); Friedman , 764 So. 2d 755

("attorney taking a discovery deposition does not approach the

examination of a witness with the same motive as one taking a

deposition for purpose of presenting testimony at trial"); Okan,

Inc., d/b/a Choice Pharmacy v. Agency for Health Care Admin. ,

DOAH Case No. 00-0113MPI (2002)(where deponent gave no

indication he would be unavailable for hearing, unsworn attorney

statements may be insufficient predicate for introduction of

deposition testimony); Paul Corbiey and Barbara Corbiey v.

Action Instant Concrete, LLC and Dep't of Envtl. Protec. , DOAH

Case No. 05-2891 (2006)(discovery deposition insufficient to

support finding where no predicate laid for unavailability of

witness under Rule 1.330(a)(3)(b) and both former testimony

hearsay exceptions require similar motive to develop deponent's

testimony on direct or cross-examination).

33. Therefore, the introduction of Detective Lavalley's

deposition testimony, as former testimony, conflicts with Rule

1.330(a)(3), Florida Rules of Civil Procedure, and, if allowed,

would amount to an unconstitutional employment of the hearsay

exception contained in Section 90.803(22), Florida Statutes,

based upon the interpretation of the court in the Grabau

decision. It would violate the Petitioner's due process right

to a fair hearing.

34. Since Detective Lavalley's deposition is inadmissible,

Respondent's Exhibits one, two, three, four, and five cannot be

corroborative or explanatory hearsay, based upon the now-

determined inadmissibility of Detective Lavalley's testimony.

The admissibility of Exhibits one, two, three, four, and five

under the circumstances of the objections as to hearsay

concerning the public records exception, business records

exception, and the party admission or statement exception to the

hearsay rule, as well as the issues of relevancy and

authentication will next be addressed. It is noted that these

exhibits cannot be corroborative or explanatory hearsay pendant

to the testimony of Respondent's witness Gaines either, since

witness Gaines had no competency as a witness to testify to the

matters depicted in Respondent's Exhibits one, two, three, four,

and five or to those contained in Detective Lavalley's

deposition testimony in Respondent's Exhibit seven. Witness

Gaines only knew of these matters through obtaining the

documents which constitute these exhibits, when preparation for

the subject agency action was commenced at the agency during the

"free-form" stage of this proceeding. Witness Gaines had no

direct or personal knowledge of such matters.

Petitioner's Exhibits 1 and 2 - the Arrest and

Booking Report and the State Attorney's Information

35. In an administrative hearing "irrelevant, immaterial,

or unduly repetitious evidence" should be excluded.

§ 120.569(2)(g), Fla. Stat. (2007). Under the subject forfeiture

statute, quoted above, an employee's pension may only be

forfeited for a conviction or plea to a specified offense under

that statute. Thus, documents such as the Petitioner's Arrest

and Booking Report and the charges, embodied in the state

attorney's Information, from the underlying criminal case, which

were offered into evidence are irrelevant in establishment of the

Petitioner's ultimate plea or conviction, concerning which the

Respondent is proceeding in this case. See Metropolitan Dade v.

Wilkey , 414 So. 2d 269, 271 (Fla. 3d DCA 1982), citing Stevens v.

Duke , 42 So. 2d 361 (Fla. 1949)("The fact that charges were filed

. . . was irrelevant to the issue of civil liability for actions

upon which the charges were originally founded. If a guilty

verdict cannot be introduced as evidence to prove liability and

the plea of guilty may be used only because it is an admission

against interest, it then falls that nothing less substantial,

i.e., indictment and dismissal, can be entered as evidence of

liability.") Thus, the Arrest and Booking Report in Respondent's

Exhibit one and the Information in Respondent's Exhibit two are

irrelevant and immaterial in establishing the relevant plea or

conviction of any specified offense under which forfeiture is

sought in this proceeding.

36. The documents contained in Respondent's exhibits one

and two further are inadmissible hearsay. Though offered as

exceptions to the hearsay rule under the public records exception

contained in Section 90.803(8), Florida Statutes, they do not

qualify under that exception. In Florida, in criminal cases at

least, matters observed by police officers or other law

enforcement personnel are not admissible under the public records

exception to the hearsay rule. The limitation is based on the

belief by courts that observations by officers at the scene of a

crime or when a defendant is arrested are not as reliable as

observations by public officials in other cases or categories

because of the adversary nature of the confrontation between the

police and the defendant on such occasions. Be that as it may,

the more germaine reason the Respondent's Exhibits one and two

are inadmissible in this non-criminal proceeding, under the

public records exception to the hearsay rule is embodied in the

third reason, referenced in Ehrhardt, Florida Evidence , 2005

Edition, Section 803.8, p. 784, specifically and intentionally

omitted from the hearsay exception in Section 90.803(8) of the

Florida Evidence Code. Thus, records of a public body that rely

upon information supplied by outside sources, or records which

contain evaluations or statements of opinion by a public official

are inadmissible hearsay under the Florida Evidence Code. See

Lee v. Department of Health and Rehabilitative Services , 698 So.

2d 1194, 1201 (Fla. 1987)(In an action alleging negligence of

HRS, a written report of HRS employee who investigated the

incident was inadmissible under Section 90.803(8):

Records that rely on information supplied by

outside sources or that contain evaluations

or statements of opinion by a public

official are inadmissible under . . .

[Section 90.803(8)]. 'In Florida, rather

than offering this type of record, a witness

must be called who has personal knowledge of

the facts.' (Quoting text).

Therefore, in addition to being irrelevant and immaterial,

Respondent's Exhibits one and two are inadmissible hearsay

because they contain an official's evaluations or statements of

opinion and do not qualify for admission under the public

records exception to the hearsay rule contained in Section

90.803(8), Florida Statutes. The exhibits are not admissible

under the business records exception for the reasons determined

in the Preliminary Statement above.

37. Respondent's Exhibit three consists of the plea of

guilty and negotiated sentence. The document consisting of

Respondent's exhibit three was not actually properly

authenticated because it was not certified by the clerk of the

circuit court for Duval County, custodian of that record. The

administrative law judge, however, exercised discretion and

ruled at the hearing that the circumstances appearing on the

face of the document, and the circumstances concerning how it

was obtained by the Respondent for offer into evidence, shows

circumstantial authenticity, sufficient to rule that the

document is authentic for propose of Section 90.901, Florida

Statutes. The plea of guilty and negotiated sentence is

admissible as an exception to the hearsay rule since it

constitutes a statement of a party or a party admission for

purposes of Section 90.803(18)(a), Florida Statutes.

38. Respondent's Exhibit four consists of the Judgment of

Conviction entered in the underlying criminal case. That

Judgment was entered pursuant to the guilty plea of the

Petitioner herein. Under Florida law, a conviction is not

admissible in subsequent litigation to prove the truth of some

essential element in the conviction. The Judgment of Conviction

is hearsay and the evidence code does not contain an exception

to the hearsay rule. See § 90.803(22)(a), Fla. Stat.; Charles

Ehrhardt, Florida Evidence, 2005 Edition (no hearsay exception

is recognized in Florida for judgments of conviction). See

Boshnack v. Worldwide Rental Car , 195 So. 2d 216, 218 (Fla.

1967)("A judgment of conviction in a criminal prosecution cannot

be given in evidence in an action to establish the truth of the

facts on which it is rendered . . . ."); Williams v. Castor , 613

So. 2d 97, 99 (Fla. 1st DCA 1993) ("The law is well established

that a judgment of conviction of a criminal offense, whether

based on a plea of guilty or nolo contendere , is not admissible

in a subsequent civil proceeding as proof of the facts on which

it is based."); Nunez v. Gonzales , 456 So. 2d 1336, 1338 (Fla.

2d DCA 1984)(In suit to cover proceeds of insurance policy,

evidence of beneficiaries' guilty plea to manslaughter of

insured was inadmissible: "It is well settled that a judgment

of conviction cannot be introduced into evidence in a civil

action to establish the truth of the facts upon which it was

rendered."). Thus, the judgment of conviction in exhibit four

and the related judgment and restitution order in exhibit five

are hearsay and cannot be admitted in this proceeding for proof

of the facts underlying the entry of the judgments. Under

Section 92.05, Florida Statutes (2007), however, as a final

judgment or decree they are admissible only as prima facie

evidence of the entry and validity of the judgments.

39. Therefore, at most, the judgment of conviction shows

that the Petitioner was convicted of the original Count II in

the information filed in the underlying criminal proceeding,

which was simply actual or constructive possession of a

controlled substance, shown on the Judgment to be a third-degree

felony and in violation of Section 893.13(c)(a), Florida

Statutes. The judgment and restitution order in exhibit five

shows the Petitioner's name as defendant, his race, sex, and

social security number and shows that restitution in the amount

of $860.00 was ordered paid as "restitution costs" for the

benefit of the Department of Health. Thus, these judgments

stand, at most, for what it is depicted on the face of them,

without them constituting proof of any underlying facts

concerning the conviction and restitution order. Therefore, at

most, they show that the Petitioner was convicted of the third-

degree felony referenced and that restitution was ordered to the

Department of Health. There are no facts in this record to show

why restitution was ordered to the Department of Health. In the

negotiated plea process it may even have been a situation where

investigation costs were being reimbursed.

40. In any event, neither of these judgments, or any other

admissible evidence of record, shows that the Petitioner

perpetrated acts which amount to facts showing that the above-

referenced statute, under which the Division is proceeding, has

been violated. He has been shown to have committed the third-

degree felony referenced, but there is no showing that he had

any intent or motivation to defraud the public or the public

agency for whom he was employed of the right to receive the

"faithful performance of his . . . duty" as a public officer or

employee, or that he realized or obtained, or attempted to

realize or obtain, a profit, gain or advantage for himself or

some other person. There is no actual showing by competent,

admissible evidence that the Petitioner took drugs unlawfully

from an employer or at the very least that he took them from the

Department of Health or the Department of Health's pharmacy. He

could have, for instance, been dually employed at some other

pharmacy, as well, and could have taken the drugs in question

(codeine) from such location or opportunity. There is no

admissible evidence as to who purloined the drugs from the

Department of Health or any other location for that matter. It

is worth noting that he was convicted of "actual or constructive

possession," to which he pled guilty. If he was charged with

actual or constructive possession it might even be the case that

some other person took the drugs and he was apprehended with

them in his vehicle or in some other way deemed to have them in

his constructive possession. The preponderant, persuasive

evidence of record simply does not prove facts to show that he

is in violation of Section 112.3173(2)(e)6., Florida Statutes,

under which the division is proceeding, nor, in a parenthetical

sense, that he committed any violation of paragraph 1-5 of that

statutory subsection because there are no facts established by

credible, persuasive evidence showing that he committed any

theft; bribery certainly was not at issue, nor was embezzlement.

41. As the party seeking forfeiture of the Petitioner's

retirement benefits, the Respondent has the burden of producing

preponderant, credible evidence of a competent nature to prove

that the forfeiture is warranted. See Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996). As forfeiture is considered a harsh remedy, the Florida

courts have consistently stated that forfeiture statutes must be

strictly construed, with doubt being resolved in favor of the

one who's rights are sought to be forfeited. Williams v.

Christian , 335 So. 2d 358, 361 (Fla. 1st DCA 1976). See also

Cabrera v. Department of Natural Resources , 478 So. 2d 454, 455-

456 (Fla. 3d DCA 1985). Under this principle, the Respondent

has failed to present preponderant, credible evidence that the

Petitioner's pension should be forfeited.

42. Under the above-referenced statute, an employee's

pension may only be forfeited for a "specified offense" as

defined in the statute. It is not the crime with which a person

is arrested or charged that determines if the pension should be

forfeited, but rather the crime for which the Defendant pled

guilty or for which he was convicted, or the conduct which he

admitted committing. Other than a felony offense under Section

112.3173(2)(e)6., which relates to a public official or

employee's duties, the specified offenses for which a person's

pension can be forfeited are embezzlement, theft, bribery, and

an impeachable offense, or certain felonies contained in Chapter

838, Florida Statutes (Bribery or misuse of public office). In

this case, the Respondent did not present any competent evidence

that the Petitioner has been convicted of, pled guilty to, or

committed any of those specified offenses set forth in

Subsection 112.3173(2)(e)1-5, and has conceded it is not

proceeding under paragraph 1-5 of that subsection.

43. Moreover, because the Respondent is proceeding, by its

own admission, only under Section 112.3173(2)(e)6., as the basis

for forfeiture, the Respondent had the burden of proving by a

preponderance of evidence that the conduct and conviction of the

Petitioner satisfied all elements of Section 112.3173(2)(e)6.

In addition to not proving that the Petitioner had the necessary

intent to defraud the public or the public agency for which he

acted or by which he was employed of the right to receive the

faithful performance of his duties, and in addition to failing

to prove that the Petitioner realized, obtained, or attempted to

realize or obtain any profit, gain or advantage for himself or

another through the use or attempted use of the powers and

duties of his employment position, the Respondent has failed to

present any credible, persuasive evidence of the Petitioner's

job duties or responsibilities. Thus, a nexus between those

duties and the relevant acts for which he was convicted has not

been proven.

44. The Petitioner's job duties were not identified, nor

how he breached them. It was proved, at most, that the

Petitioner was a pharmacist employed by the Department of

Health, and was convicted of illegal drug possession and that

restitution was ordered. The Respondent did not establish

specifically where he was employed, or in what location his

duties were to be performed, or how he came into possession of

the codeine vis a vis his employment. The Respondent did not

establish that the Petitioner had the intent to defraud the

public or a public agency and the Respondent failed to meet the

statutory requirement of proof of a nexus between the crime and

the duties of his position. See Magyari v. City of Starke , DOAH

Case No. 06-3701 (2007); Page v. Department of Management

Services, Division of Retirement , DOAH Case No. 05-0532 (2005);

Ellis v. Division of Retirement , DOAH Case No. 97-1357 (1997);

and Warshaw v. City of Miami Firefighters and Police Officers

Retirement Trust , 885 So. 2d 892 (Fla. 3d DCA 2004) (concerning

the statutory requirement of proof of a nexus between the crimes

committed or convicted and a public employee and his duties and

position).

45. The Respondent did not adduce any persuasive evidence

that the Petitioner deprived his employer of something of value

as required by the statute. The admissible evidence presented

by the Respondent simply did not make that connection. The

Respondent did not prove with any substantial, persuasive

evidence that the Petitioner acted "willfully with an intent to

defraud" the public or his employer, as is explicitly required

by the statute under which the Respondent is proceeding.

46. The Respondent's only witness, Mr. Gaines, a division

benefits administrator, was not in a position to competently

testify regarding the Petitioner's duties at the Department of

Health and how his alleged crime related to those duties, nor

could he testify as to the Petitioner's conduct or how it

deprived the Department of Health of the right to "receive the

faithful performance of his duties." Mr. Gaines was unable to

testify as to the motives of the Petitioner and whether he acted

"willfully" or "with intent to defraud" his employer or the

public. The Respondent failed to put forth in any other

admissible evidence or witness who could testify regarding these

necessary statutory elements.

"Challenge" to the unpromulgated rule

47. In its petition and its proposed recommended order,

the Petitioner raises the argument that the potential breadth of

the "catchall" provision (Section 112.3173(2)(e)6, Florida

Statutes), is "enormous" and without agency clarification would

permit the agency, in its unbridled discretion, to "forfeit

pensions for virtually any felony imaginable." The Petitioner

then contends that an agency rule should have been promulgated

to address the parameters of agency discretion and that the

failure to promulgate a rule or rules renders the agency without

legitimate legal authority to take action on the subject either

directly or through the adjudicatory process, citing Kerper v.

Department of Environmental Protection , 894 So. 2d 1006, 1010

(Fla. 5th DCA 2005).

48. The Petitioner cites Section 120.54(1)(a), Florida

Statutes (2007), for the proposition that rulemaking is not a

matter of discretion for the agency and that each "agency

statement" defined as a rule in Section 120.52, Florida

Statutes, shall be adopted by rulemaking as soon as "feasible

and practicable." The Petitioner contends that if the agency

neglects to act on its rulemaking power and attempts to

promulgate policy of general applicability on an ad hoc basis,

by orders in particular cases, then rulemaking must be a

predicate for further action and, if necessary, agency action

should be invalidated if taken without rulemaking. The

Petitioner cites General Dev. Corp. v. Division of State

Planning, Department of Administration , 353 So. 2d 1199, 1209

(Fla. 1st DCA 1977), in furtherance of this argument.

49. The Petitioner cannot prevail on this position for

several reasons. First, the Petitioner has not proven that the

agency here is seeking to implement or proceed under any "agency

statement of general applicability" in prosecuting this case and

in carrying out its duties under Section 112.3173(2)(3)6.,

Florida Statutes. It is not operating in this proceeding on an

ad hoc basis, seeking to promulgate a policy of general

applicability. Rather, the agency's position in this case,

regarding the statute it is attempting to enforce, is specific

to the facts it believed with regard to the Petitioner and his

employment position and duties, and the particular felony of

which he was convicted. There is no attempt here to establish,

employ, or apply any agency statement or policy of "general

applicability," so what the agency was attempting in this

proceeding does not constitute a rule, which would place the

duty on the agency to embark on rulemaking before enforcing

such.

50. Moreover, this is not a properly pled and noticed rule

challenge proceeding. Although the Petitioner raised this

argument in its amended petition, and although it is possible to

hear a rule challenge proceeding in conjunction with Section

120.57 and Section 120.569 proceeding, the jurisdiction of the

Division of Administrative Hearings is different between the two

types of proceeding, the former requiring a final order on a

petition filed directly with the Division of Administrative

Hearings and the latter requiring a recommended order, with the

final order being entered by the referring agency.

51. Even if the purported rule challenge allegation raised

in the amended petition could be deemed to be at issue herein,

with proper notice in this 120.57(1) proceeding, (which was

without objection) and even though it is possible to hear the

rule challenge and the "substantial interest" proceeding on a

consolidated record and to carve out the rule challenge issue

for entry of a separate final order, such is unnecessary. The

Petitioner failed to adduce any evidence whatever in support of

its position regarding the agency purportedly acting in this

proceeding based upon an unpromulgated policy of general

applicability. No evidence whatever was presented to show any

such policy being in existence or employed in this case. The

agency was simply acting with the factual evidence it believed

it could advance in order to attempt to show that the statutory

elements referenced above could be established. There is no

attempt by the agency to advance any generally applicable policy

shown by the evidence in this record.

52. In spite of its argument in the proposed recommended

order to the contrary, the failure to advance any substantial

evidence of such a policy results in the effective abandonment

of this argument or allegation by the Petitioner. A rule

challenge must be initiated by the filing of a separate

petition, directly with the Division of Administrative Hearings.

It triggers its own discreet timeline for notice, hearing and

entry of a final order. Jurisdiction of an unpromulgated rule

challenge was not properly invoked.

53. The Petitioner has moved for an award of attorney's

fees and costs pursuant to Section 57.105, Florida Statutes, and

has given the Respondent notice of such. In order for an award

of attorney's fees and costs to be at issue, stemming from a

proceeding such as this, the Petitioner must first become a

"prevailing party" under that section. That cannot occur in

this case until a final order has been entered by the Respondent

agency, and/or by an appellate court. Thus, the motion for

attorney's fees and costs pursuant to Section 57.105, Florida

Statutes (2007), must be the subject of a separate petition

filed once the Petitioner becomes a prevailing party, if he

does, upon conclusion of this proceeding.

54. For purposes of the attorney's fee request or argument

regarding Section 120.569(2)(e), Florida Statutes, there has

been no proof that any pleading, motion or paper in this

proceeding has been filed or interposed for an improper purpose,

such as to harass or to cause unnecessary delay or for frivolous

purpose or for needlessly increasing the cost of litigation.

The motion for fees and costs pursuant to Section 120.569(2)(e),

Florida Statutes, is denied.

55. Further, to the extent the Petitioner seeks an award

of attorney's fees and costs under Section 120.595(4)(a),

Florida Statutes, there has been no substantial evidence to show

that such should be awarded. That statutory provision provides

that if, upon entry of a final order, all or part of an agency

statement violates 120.54(1)(a), Florida Statutes, then the

administrative law judge shall award reasonable costs and a

reasonable attorney's fee to the Petitioner. Even had a Section

120.54(1)(a) challenge been filed by appropriate petition, there

has been no proof that there is any agency statement of general

applicability being employed in this proceeding and therefore no

evidence to show that an unpromulgated, non-rule policy has been

used to support the forfeiture of retirement benefits.

Therefore, the request for attorney's fees for purposes of

Section 120.595(4), Florida Statutes (2007), is denied.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and the arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Department

of Management Services, Division of Retirement, finding that the

Petitioner's retirement benefits should not be forfeited and that

all such benefits be restored.

DONE AND ENTERED this 30th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 30th day of January, 2008.

ENDNOTE

1/ All statutory references are to Florida Statutes (2003),

unless otherwise noted.

COPIES FURNISHED :

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, General Counsel

Division of Retirement

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.