16-000524 Jonathan Bleiweiss vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, June 7, 2016.

Summary: Petitioner was not convicted of specified criminal offenses requiring the forfeiture of all his rights and benefits under the Florida Retirement System.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONATHAN BLEIW E ISS,

Petitioner,

vs. Case No. 16 - 0524

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by tele phone conference call on

March 15 , 201 6 , at sites in Tallahassee and Indiantown , Florida.

APPEARANCES

For Petitioner: Jonathan Bleiweiss, pro se

Martin Correcti onal Institution

1150 Southwest Allapattah Road

Indiantown , Florida 34956 - 4310

For Respondent: Joe Thompson , Esquire

Department of Management Services

4050 Esp l anade Way, Suite 160

Tallahassee, Florida 32399

STATEMENT OF T HE ISSUE

The issue in this proceeding is whether Petitioner was

convicted of specified criminal offenses, requiring the

forfeiture of all of his rights and benefits under the Florida

Retirement System, except for the return of accumulated

contributions.

PRELIMINARY STATEMENT

In a Notice of Action to Forfeit Retirement Rights

and Benefits dated November 2 4 , 20 15 , Respondent Department

of Management Services, Division of Retirement, notified

Petitioner Jon athan Bleiweiss of its intent to deem his rights

and benefits under the Florida Retirement System forfeit as

a result of h is convictions, in 20 15 , for armed false

imprisonment , a crime committed while he was on duty as a deputy

sheriff . Mr. Bleiweiss timely requested a formal hearing to

contest this preliminary forf eiture determination, and, on

January 29, 20 16 , the matter was filed with the Division of

Administrative Hearings.

The final hearing took place as scheduled on March 1 5 ,

20 16 , with both parties present. Respondent called two

witnesses : Mr. Bleiweiss and Kathy Gould, c hief of the Bure au

of Retirement Calculations. In a ddition, 12 of Respondent's

exhibits , numbered 1 , 2, 4 through 11 , 13, and 14, were received

in evidence. Mr. Bleiweiss testified on his own behalf and

presented no other evidence.

The fi nal hearing transcript was filed on April 4 , 2016.

Each party timely filed a Proposed Recommended Order on or

before the deadline, which had been extended to May 2 7 , 2016, at

Mr. Bleiweiss 's request.

Unless otherwise indicated, citations to the official

s tatute law of the state of Florida r efer to Florida Statutes

2015.

FINDINGS OF FACT

1. From 2002 until 2011 , including all times relevant to

this case, Petitioner Jonathan Bleiweiss (" Bleiweiss ") was

employed as a deputy sheriff by the Broward Sheriff's Office .

As a public employee, he became a member of the Florida

Retirement System ("FRS"), which is administered by Respondent

Department of Management Services, Division of Retirement

("Division").

2. On February 12 , 20 15 , Bleiweiss pleaded guilty in the

Broward County Circuit Court, Seventeenth Judicial Circuit, to

14 counts of armed false imprisonment . 1 / False imprisonment, as

defined in section 787.02(1) (a), Florida Statutes, is a felony

of the third degree. This crime must be reclassified upward ,

however, where, as here, "the defendant carrie[d], display[ed],

use[d], threaten[ed] to use, or attempt[ed] to use any weapon or

firearm " while committing the felony , unless an exception

applies, which none did in Bleiweiss's case . See

§ 775.087(1)(c), Fla. Stat. Accordingly, armed false

imprisonment, as charged against Bleiweiss, is a second - degree

felony. Based on Bleiweiss's plea s , the court entered judg ment s

of conviction adjudicat ing Bleiweiss guilty . 2 /

3. The Amended Information fr om one of the criminal cases,

which is dated October 1, 2009, set s forth the ultimate facts

underlying each of the false imprisonment charges to which

Bleiweiss entered a plea of guilty, as follows:

[O]n or between [various dates], in [Broward

County, Florida, Bleiweiss] did forcibly, by

threat, or secretly confine, abduct,

imprison, or restrain [the alleged victim]

without lawful authority and against his

will, and during the commission thereof

Jonathan Bleiweiss carried or displayed a

firearm . . . .

By pleading guilty, Bleiweiss admitted the foregoing

allegations, which the undersigned accordingly adopts as

findings of fact herein. 3 / These facts, however, which closely

conform to the elements of the offense, shed little light on

what actually happene d.

4 . At the plea colloquy, Bleiweiss stipulated to a few

additional facts, agreeing that if the "cases were to proceed to

trial the State would prove that . . . while working as a

Broward Sheriff's deputy while dressed in full police uniform

and driving a marked police vehicle [Bleiweiss] did forcibly by

threat or secretly confine certain individuals whose initials

are AL, JM, SG, MP, LS, AP, and JH against their will, and in

the course th ereof . . . exhibited a firearm." These undisputed

factual grounds for Bleiweiss's plea are adopted as findings , as

well .

5 . The court sentenced Bleiweiss to five years in prison,

to be followed by ten years on probation. As of the final

hearing in this case, Bleiweiss was incarcerated .

6 . In due course th e Division learned of Bleiweiss's plea s

and adjudication s of guilt . Upon review, the Division

determined that Bleiweiss had been convicted of "specified

offenses" (a legal term that will be discussed below) and

concluded that, consequently, he had forfeit ed his righ ts and

benefits as a member of the FRS. By letter dated November 24 ,

20 1 5, the Division notified Bleiweiss of its preliminary

decision regarding the forfeiture of his ret irement benefits and

offered him an opportunity to request a formal administrative

pr oceeding to contest the determination. Bleiwe i ss timely

requested a hearing.

7 . Although not directly relevant to the disposition of

this dispute, it is a fact that, when he was charged with armed

false imprisonment, Bleiweiss was also charged with multiple

crimes relating to sexual battery upon various persons in his

custody . The government nolle prossed these charges

simultaneously with the entry of Bleiweiss's guilty plea s .

Therefore, the government never proved that Bleiweiss had

committed any sex crimes, as alleged, and, obviously, he was not

convicted of any such crimes.

8 . At the final hearing in this proceeding, the Division

could have offered nonhearsay evidence ÏÏ e.g., the testimony of

an alleged victim, eyewitness, or Bleiweiss himself Ï Ï tending to

establish that, in the course of committing the acts of false

imprisonment for which he was convicted, Bleiweiss additionally

committed sexual batteries against the person or persons whom he

had unlawfully detained. The Division, however, did not offer

any direct , nonhearsay evidence that during the commission of

the felonies to which he pleaded guilty , Bleiweiss had sought or

secured any personal gain or advantage in the form of sexual

gratification or elsewise . 4 / Moreover, w hen asked at hearing by

the Division's counsel whether he had engaged or attempted to

engage in sexual activities with any of the persons whom he

falsely imprisoned, Bleiweiss testified under oath that he had

not.

9 . The record contains scant evidence , if any, conc erning

the actual circumstances surrounding the commission of the

crimes to which Bleiweiss pleaded guilty. Bleiweiss testified

that it was his understanding that the factual bases for the

guilty pleas were that he had conducted traffic stops without

prob able cause (thereby committing the crime of false

imprisonment) ; conducted searches without probable cause

(committing simple battery); and carried a holstered gun ,

resulting in the upward reclassification of the false

imprisonment charge from a third - to a second - degree felony.

Bleiweiss made clear, however, that this was not what actually

happened, as a matter of historical fact, but rather that this

was what he understood to be t he factual predicate for the plea

agreement. He believes that, in fact, he did nothing wrong and

wa s not guilty of any crimes. 5 / Although Bleiweiss did not

testify about what he actually did that resulted in his being

(as he sees it ) wrongfully charged, prosecuted, convicted , and

imprisoned, he declared that he had "no problem with" doing so

if the undersigned wanted to know. The undersigned elected to

let the Division inquire about this, but the Division did not

pursue the matter.

10 . The result is that the only facts regarding

Bleiweiss's conduct which the undersigned can co nsider in

determining whether he committed a specified offense are those

set forth above in paragraph s 3 and 4 (the "Basic Facts") .

Because the Division, not Bleiweiss, has the burden of proof in

this case, the adverse consequences of insufficient eviden ce

fall on the Division.

11 . T he Basic Facts do not directly establish that

Bleiweiss committed the crimes of false imprisonment with the

specific intent to defraud the public or the Broward Sheriff's

Office of the right to receive the faithful performance of his

duties as a deputy , which the Division must prove as a condition

of forfeiture . There is, indeed, no persuasive direct evidence

in the record of Bleiweiss's intent. Because false impriso nment

is a general intent crime , 6 / more over, the commission of this

crime does not, without more, give rise to a reasonable

inference of fraudulent intent.

12 . Here, the Basic Facts establish , in addition to the

bare elements of the crime, that Bleiweiss committed false

imprisonment while dr essed in uniform , carrying a gun, and

driving his police car . These facts are not only consistent

with the conclusion , but persuasively demonstrate (and it is

found) , that Bleiweiss used the power of his official position

in the commission of these crimes ÏÏ an additional element that

the Division needed to prove . There can be little doubt that

Bleiweiss's ability to detain individuals was significantly

enhanced, if not dependent upon, the authority of his office,

which was literally worn upon his person.

13 . F raudulent intent is another matter . This is because

police officers are called upon in the proper exercise of their

duties to detain or restrain persons, forcibly or by threat,

against their will. 7 / The only fact that necessarily

distinguishes a la wful arrest from a n act of criminal false

imprisonment is the presence of "lawful authority." Thus, a

police officer who makes a traffic st op without reasonable

suspicion , 8 / or a warrantless arrest without probable cause , 9 /

theoretically could commit the crime of false

imprisonment ÏÏ which, to repeat, is a gener al intent crime that

can be committed without the intent to unlawfully detain the

victim ÏÏ even while intending to perform his official duties

faithfully ; put differently, the commis sion of false

imprisonment is not necessarily so inconsistent with the

faithful performance of a police officer's duties that the

commission of the crime inevitably implies an intent to defraud

on the perpetrator's part . 10 /

1 4 . The upshot is that while there is a little more here,

factually speaking, than the bare elements of false imprisonment

to consider, the circumstantial evidence is yet insufficient to

persuade the undersigned to fin d , by inference, that Bleiweiss

intended t o defraud the public or his employer , so as to mak e it

appear that he was faithfully discharging his duties when he was

not. On the instant record, the undersigned can only speculate

that this was the case ÏÏ and that is not enough.

15 . The evidence is eve n weaker on the question of whether

Bleiweiss, in committing the crime of false imprisonment, sought

or obtained a profit, gain, or advantage for himself or another

person , which is something else that the Division must prove.

As previously discussed, the record is devoid of evidence

sufficient to establish that Bleiweiss obtained or sought a

profit, gain, or advantage for himself in the form of sexual

gratification or the fulfillment of some other "untoward

intentions." The Division argues that Bleiweiss "gained an

advantage over the individuals [whom he falsely imprisoned]

by employing his uniform, patrol vehicle, firearm, and general

status as an officer of the law who must initially be

obeyed . . . ." Resp . 's PRO at 11. Such an "advantage,"

however, was inherent in the power, rights, privileges, and

duties of Bleiweiss's position as a deputy sher iff and was

something he had whenever he went to work . A n advantage a

public employee enjoys by virtue of the power, rights,

privileges, or duties of his pos ition cannot be the advantage

realized or sought as the object of a "specified offense " as

defined in section 112.3173(2)(e)6., Florida Statutes, for the

obvious reason that, if it could, the "profit, gain, or

advantage" element would always be met ÏÏ and th us would be

unnecessary. The Division's argument on this point must ,

therefore, be rejected.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

1 7. Article II, s ection 8(d) of the Florida Constitution

provides as follows :

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 abus e. 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

m anner as may be provided by law.

1 8. Sec tion 112.3173 11 / 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 g uilty

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 or 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 an

officer or employee of any public body,

political subdivision, or public

instrumentality within the state.

(d) "Public retirement s ystem" means any

retirement system or plan to which the

provisions of part VII of this chapter

apply.

(e) "Specified offense" means:

* * *

6. The committing of any felony by a public

officer or employee who, willfully and with

intent to def raud 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 re alize 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 an d 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.

1 9. As the party asserting that Bleiweiss's rights and

benefits under the FRS are forfeit, the Division bears the

burden of proof in this proceeding. Rivera v. Bd. of Trs. of

Tampa's Gen. Emp't Ret. Fund , 2016 Fla. App. LEXIS 2847, at *5,

41 Fla. L. Weekly D505 (Fla. 2d DCA Feb. 26, 2016).

2 0. The Division maintains that each act of armed false

imprisonment for which Bleiweiss was successfully prosecuted

meets the "catch - all" definition of "specified offense" in

section 112.3173(2)(e)6. Whether this is so "depends on the way

in which the crime was committed " because, under "the p lain

meaning of the words used in" section 112.3173(2)(e)6 ., "the

term "specified offense" [is defined] by the conduct of the

public officer and not by the elements of the crime." Jenne v.

Dep't of Mgmt. Servs., Div. of Ret. , 36 So. 3d 738, 742 (Fla.

1st DCA 2010). 1 2 /

21. To be a "specified offense" under "section

112.3173(2)(e)6., the criminal act in question must meet all of

the following elements:

(a) [The crime is] a felony;

(b) [ It was] committed by a public

employee;

(c) [ It was] done willfully and with intent

to defraud the public or the employee's

public employer of the right to receive the

faithful performance of the employee's duty;

(d) [ It was] done to obtain a profit, gain

or advantage for the employee or some other

person ; and

(e) [ It was] done through the use or

attempted use of the power, rights,

privileges, duties, or position of

Appellant's employment

Bollone v. Dep't of Mgmt. Servs. , 100 So. 3d 1276 , 1280 - 81 (Fla.

1st D CA 2012) .

22. The Division carried its bur den with regard to

elements (a), (b), and (e), as the f indings of fact above make

clear. As detailed above, however, t he Division fa iled to

present evidence sufficient to establish the existence of

elements (c) and (d). The Division's preliminary decisio n is

not supported by the proven facts and therefore cannot be

implemented in a final order.

23. In terms of the failure of proof, this case resembles

Rivera v. B oar d of T rustees of Tampa's Gen eral Emp loy ment

Ret irement Fund , supra . That case arose from the City of

Tampa's decision to terminate the retirement benefits of a

longtime city employee following his conviction on (after

pleading guilty to ) multiple counts of crimes involving unlawful

sexual conduct with underage girls. The crimes clearly

const ituted "specified offenses" under section 112.3173(2)(e)7. Ï

Ï which unlike the catch - all provision implicated here focuses

exclusivel y on sex crimes against minors ÏÏ as long as the

employee committed them "through the use or attempted use of

power, rights, pr ivileges, duties, or position of his or her

public office or employment position." Rivera (the employee)

argued on appeal that the city had "failed to introduce any

proof other than inadmissible hearsay" to demonstrate the

requisite "nexus between [his] p osition as a City employee and

his commission of the offenses." Rivera , 2016 Fla. App. LEXIS

2847 at *9.

24. The court agreed. Allegedly, Rivera had used the keys

provided to him as a city employee to gain access to city

property where he allegedly brought his young female victims.

These allegations, if proved, would have established the

necessary nexus between work and crime . But (as here) none of

the victims testified at hearing, and Rivera, who did, denied

using city - issued keys to facilitate hi s criminal conduct (much

as Bleiweiss denied having engaged in sex acts with his

victims) . Id. at *7. The city offered police reports and other

records from the criminal prosecution, which contradicted

Rivera's testimony , but these were plainly hearsay f alling

outside of any recognized exception to the hearsay rule. Id.

at * 11. Even the fact that Rivera had been arrested on city

property in the company of an underage girl was insufficient,

held the court, because although "Mr. Rivera would almost

certainly have used City - issued keys to gain access to the

property where he was arrested," no evidence was presented to

establish that he had committed a crime on that date . Id.

at *11 - 12. The court concluded that the forfeiture order was

not supported by competent substantial evidence and hence had to

be set aside. Id. at *12 - 13.

25. Here, the failure of proof does not relate to the

work - crime nexus, as in Rivera , but to the elements of

fraudulent intent and personal gain (ne ither of which are

elements of the specified offense at issue in Rivera ). Still,

the similarities are evident . As in Rivera , the proponent of

the forfeiture order has failed to present proof of what the

employee actually did ( in addition to t hat which he necessarily

admitted by pleading guilty to the underlying crimes ) sufficient

to show that the employee was , in fact, convicted of a specified

offense as alleged. Absent such proof there can be no

forfeiture of benefits.

RECOMMENDATION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Management

Services, Division of Retirement, enter a final order restoring

to Bleiweiss his rights and benefits under the FRS and providing

for pay ment to him of any past due benefits, together with

interest at the statutory rate.

DONE AND ENTERED this 7th day of June , 20 1 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 7th da y of June , 20 1 6 .

ENDNOTE S

1 / At the same time, Bleiweiss pleaded guilty to the crimes of

simple battery and stalking, both misdemeanors.

2 / Bleiweiss was the defendant in several separate cases

involving the same charges and similar alleged criminal acts.

3 / See, e.g. , Robinson v. State , 373 So. 2d 898, 902 (Fla.

1979)(guilty plea is an in - court confession that not only admits

the acts charged but al so is itself a conviction).

4 / The Division argues that Bleiweiss obtained a "gain by

forcing his untoward intentions upon [his victims] in the form

of unwanted intentional touching and repeated, malicious

harassment." Resp.'s PRO at 10. There are mult iple problems

with this argument, which render it unpersuasive. To begin, and

to be as clear as possible, there is NO EVIDENCE IN THIS RECORD

that Bleiweiss forced his "untoward intentions" upon anyone.

The reference to "untoward intentions" is a transpa rent attempt

to insinuate that Bleiweiss engaged or attempted to engage in

sex acts with persons in his custody. Bleiweiss was charged

with crimes involving such despicable conduct, to be sure, and,

yes, the fact of his arrest for those crimes implies tha t

probable cause existed to believe that he had committed them.

But those accusations were NEVER PROVED, either in the

underlying criminal prosecutions or in this proceeding. It

would be wrong, to say the least, to rescind Bleiweiss's earned

retirement b enefits based not upon proven facts but, with a wink

and a nod, upon shocking allegations that we "just know" must be

true even though we have not seen evidence of them.

Next, the "unwanted intentional touching" in question

provided the grounds for conv icting Bleiweiss of a separate

crime, the misdemeanor offense of simple battery. As a matter

of law, misdemeanor battery cannot be a "specified offense"

under section 112.3173(2)(e)6., Florida Statutes, because only

felonies fall within the relevant defin ition. The only

evidence, moreover, which links the battery convictions to the

false imprisonment convictions is Bleiweiss's testimony that he

intentionally touched one person while committing the crime of

false imprisonment, to search that person for dru gs. The

Division did not cross - examine Bleiweiss, however, to elicit any

details as to how or where he had touched this person, or for

what purpose (if not to frisk him for contraband as Bleiweiss

claimed). Thus, Bleiweiss merely conceded the bare elemen ts of

simple (misdemeanor) battery, see § 784.03(1)(a), Fla. Stat.,

which do not require that the perpetrator touch another for

personal profit, gain, or advantage. Because the record

contains no persuasive evidence that Bleiweiss sought or

received a ben efit from committing such a battery, the "unwanted

intentional touching" here cannot lawfully be a basis for

forfeiture of his retirement benefits.

Finally, as for the "malicious harassment," this sort of

conduct on Bleiweiss's part led to his convictio ns for stalking.

Like simple battery, this crime is a misdemeanor, see

§ 784.048(2), Fla. Stat., and therefore cannot be a "specified

offense" under section 112.3173(2)(e)6. Plus, there is no

evidence linking the misdemeanor stalking convictions to the

felony false imprisonment convictions, which means that even if

Bleiweiss obtained some personal benefit from the criminal

stalking (and just to be clear there is no evidence that he

did), the commission of this misdemeanor still would not be a

"specified offense." In short, while "malicious harassment"

sounds bad and is a crime for which Bleiweiss has been

incarcerated, this particular conduct is irrelevant to the

instant question of whether Bleiweiss has forfeited his

retirement benefits.

5 / When Bleiwe iss pleaded guilty to the crimes at issue, he

simultaneously protested his innocence, entering a so - called

" Alford plea." Once accepted by a court, however, "the

collateral consequences flowing from an Alford plea are the same

as those flowing from an ord inary plea of guilt," including the

"intrinsic admission of each element of the crime" referred to

in the plea. Troville v. State , 953 So. 2d 637, 640 n.9 (Fla.

4th DCA 2007). Thus, while Bleiweiss's insistence on his

innocence is logically consistent wi th his Alford plea of guilt,

the guilty plea is legally controlling in any event.

6 / E.g. , Delgado v. State , 71 So. 3d 54, 68 n.9 (Fla. 2011). A

general intent crime makes unlawful the intentional commission

of a specific voluntary act or prohibits some thing that is

substantially certain to result from such an act, without regard

to the perpetrator's subjective purpose or conscious object in

doing the act. E.g. , M.T.A. v. State , 182 So. 3d 689, 692

(Fla. 1st DCA 2015).

7 / The Division argues (without supporting evidence or

authority) that "[f]orcefully or secretly confining multiple

individuals, for the purpose of intentionally touching them

against their will, was not part of Petitioner's duties."

Resp.'s PRO at 8. This statement, aside from being u nsupported,

is plainly untrue, on two levels. First, there is no evidence

that Bleiweiss committed false imprisonment for the purpose of

intentionally touching any person, much less multiple

individuals. Bleiweiss testified that he criminally touched one

person whom he had falsely imprisoned, for the purpose of

searching that individual for drugs. As mentioned previously,

the Division did not offer any evidence to rebut or contradict

Bleiweiss's assertion, or even cross - examine him about it.

Second, it is simply an indisputable, commonly known fact that

police officers, in the proper performance of their duties,

intentionally touch suspects against their will for the

purposes, among others, of forcibly arresting, searching, and

frisking them.

8 / See, e .g. , Hilton v. State , 961 So. 2d 284, 290 (Fla. 2007).

9 / See, e.g. , Mathis v. Coats , 24 So. 3d 1284, 1288 (Fla. 2d

DCA 2010).

1 0/ That said, the undersigned recognizes that false

imprisonment by a police officer is conduct which is consistent

with an intention to defraud the public of the right to receive

the officer's faithful performance. The point above is that

such conduct is equall y consistent with other intentions besides

the intent to defraud, which weakens the inferences that might

reasonably be drawn from proof of such conduct.

1 1/ The applicable version of the forfeiture statute is the one

that was in effect on the date of th e criminal acts. See

Warshaw v. City of Miami Firefighters' & Police Officers' Ret.

Trust , 885 So. 2d 892, 895 n.7 (Fla. 3rd DCA 2004)(Cope, J.,

dissenting). Section 112.3173 has not been amended in relevant

part during the years since Bleiweiss committe d his crimes.

1 2/ Because the relevant statutory provisions are clear and

unambiguous, there is neither need nor room for interpretation

of them. Thus, the Division's invocation of the deference

doctrine is misplaced. See Resp.'s PRO at 7. Even if t he

statute were ambiguous, however, administrative law judges

(unlike courts) are under no obligation to defer to an agency's

interpretation of any statute or rule, nor should they, given

that de novo administrative hearings (unlike judicial

proceedings co nducted under the constitutional powers of a

separate governmental branch) "are designed to give affected

parties an opportunity to change the agency's mind." E.g. ,

Couch Constr. Co. v. Dep't of Transp. , 361 So. 2d 172, 176 (Fla.

1st DCA 1978). Would an agency to whose legal opinions every

judge must yield really be likely to keep an open mind about the

correctness of its decisions? The undersigned doesn't think so

either. See, e.g. , The Public Health Trust of Miami - Dade Cnty.

v. Dep't of Health , Case N o. 15 - 3171, 2016 Fla. Div. Adm. Hear.

LEXIS 102, 82 - 85 (Fla. DOAH Feb. 29, 2016).

COPIES FURNISHED :

Jonathan Bleiweiss , DC No. B13582

Martin Correctional Institution

1150 Southwest Allapattah Road

Indiantown, Florida 34956 - 4310

(eServed)

Joe Thompson, Esquire

Department of Management Services

4050 Espanade Way, Suite 160

Tallahassee, Florida 32399

(eServed)

Dan Drake, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

J. Andrew Atkinson , General Counsel

Office of the General Counsel

Department of Management Services

4050 Espanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed )

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.