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William Patrick

Private nonprofit, for-profit universities could soon get regulatory relief

Bad press, combined with federal rules and regulations disproportionately targeting the higher education alternatives, have taken their toll on nonprofit and for-profit universities in recent years — but that could soon change.

For-profit and private nonprofit colleges and universities offer career-building options separate from traditional public universities. Small class sizes, hands-on training and flexible schedules are common features designed to help students obtain degrees, practical jobs skills and employment-related certifications.

Student bodies also are diverse, and not just demographically. Active military members, veterans, adults at various stages of life, and those with jobs and children are more intentionally accommodated. As a result, enrollment has skyrocketed over the past two decades.

But regulatory change is afoot. In February, Arthur Keiser, chancellor and CEO of Fort Lauderdale-based Keiser University, was named chairman of the National Advisory Committee on Institutional Quality and Integrity.

The committee will make recommendations to U.S. Secretary of Education Betsy DeVos — a noted Florida education reformer — regarding accreditation and institutional eligibility for federal student financial aid.

Keiser University is a private nonprofit school with nearly 20,000 students enrolled across 18 Florida campuses. It offers 100 degrees at the doctoral through associate level, and employs 3,800 staff and faculty, according to its website.

Other large Florida private nonprofit universities include Nova Southeastern, St. Leo, Barry and the University of Miami. Together with Keiser, they serve about 87,000 students.

More recently, the U.S. Department of Education signaled a potential policy shift when it allowed additional time for postsecondary schools to appeal “gainful employment” determinations issued by the Obama administration in its final days.

“This action is taken to allow the Department to further review the (gainful employment) regulations and their implementation,” a statement from the acting assistant secretary for the federal student aid office said in March.

Billed as an accountability measure, outgoing Education Department officials released the first student loan debt-to-earnings rates on Jan. 9, pursuant to regulations finalized in 2014. At stake is access to federal student financial aid, the lifeline for for-profit and nonprofit career schools.

Industry representatives viewed the 11th-hour release as a parting shot from an administration overly hostile to higher education alternative career schools.

Steve Gunderson, president and CEO of Career Education Colleges and Universities, a membership organization of 470 campuses offering career training programs, said the decision was “all about political motivations and harming institutions” and had “nothing to do with expanding higher education access and opportunity or creating sound public policy.”

“It is time to stop the war,” Gunderson said in a statement.

Schools now have until July 1 to submit appeals and comply with formerly enacted regulatory disclosure requirements.

The former administration regulatory actions were bolstered by high-profile disasters in the career training space in which it played an active role.

For-profit colleges made headlines when California-based Corinthian Colleges International closed or sold off more than 90 nationwide campuses in 2014 amid allegations of falsified job-placement data and predatory lending.

Last year, the federal Consumer Financial Protection Bureau accused ITT Tech of pushing high-cost predatory loans on vulnerable students. The school closed after DOE required it “to boost its cash reserves,” and ultimately cut off access to federal student aid.

The industry also has received negative publicity for high student loan default rates, which some scholars say is on par with public universities when comparing similar student body demographics.

Federal gainful employment regulation

The federal gainful employment regulation is supposed to protect students and taxpayers from dishonest career programs that don’t deliver enough postgraduate earnings to justify tuition costs, and thereby student loan debt.

According to the DOE, the law requires that most for-profit programs and certificate programs at private nonprofit and public institutions prepare students for “gainful employment in a recognized occupation.”

“That is a high bar in a global economy known for not only job redundancy, but also radical sector disruption, often before a career school grad has earned his or her associate’s or bachelor’s,” contends Forbes education author James Marshall Crotty.

It also singles-out for-profit career schools, and to a lesser extent private nonprofit schools, as their students overwhelmingly depend on financial aid. Legally, for-profit institutions can receive up to 90 percent of their funding through federal Title IV student aid programs. Private nonprofit schools can receive 100 percent.

Cutting off Title IV student loans and grants would effectively bankrupt the schools.

Industry groups are looking to the Trump administration to relieve existential pressures imposed through harsh evaluation standards embedded in the framework of the Obama-era regulations.

Under the gainful employment rule, colleges whose graduates have an average annual loan repayment rate of less than 8 percent of their total earnings, or less than 20 percent of discretionary earnings, will receive a passing grade for their gainful employment program.

A graduate repayment rate between 8 percent and 12 percent of total earnings, or between 20 percent and 30 percent of discretionary earnings, is labeled “the zone.” Repayment rates above 12 percent of total earnings, or 30 percent of discretionary earnings, is considered failing.

If a college registers two failing grades in any consecutive three-year period, it loses all federal Title IV student aid. Four consecutive years of the zone also will lead to a loss of all federal student aid funding — a death sentence.

According to the Jan. 9 news release from the DOE, over 800 programs serving hundreds of thousands of students failed the Obama administration’s accountability standards, and an additional 1,239 programs are in jeopardy of failing. Ninety-eight percent were programs offered by for-profit colleges.

The concentrated figures appear to be evidence of what many critics have characterized as a biased regulatory crackdown.

“There is no for-profit that hasn’t had an investigation or lawsuit action,” said Eric Juhlin, CEO of the Center for Excellence in Higher Education, at a Cato Institute panel discussion in Washington, D.C., two weeks after the November election.

“The allegations alone are so damaging that those institutions will oftentimes pay whatever is necessary to resolve that move it forward just to get it out of the press,” Juhlin said.

Neal McCluskey, director of Cato’s Center for Educational Freedom, said the previous administration placed an “unfair focus” on for-profits and “somewhat of a demonization to the exclusion of looking at all sectors.”

“It’s not like there aren’t a lot of problems in for-profit higher education, because there are. There’s good reason to scrutinize that sector,” he said. “But there’s good reason to scrutinize all sectors.”

The Obama administration first unveiled its gainful employment proposal back in 2010, before the implosions of Corinthian College and ITT Tech. One year later, Keiser University switched from a for-profit institution to a private nonprofit university.

Composite scoring

A related, but entirely different holdover regulation, is set to take effect July 1.

Known as composite scoring, new financial health rules will soon be applied to nonprofit and for-profit colleges and universities across the country. Public universities, backed by the full faith and credit of their respective states, are not subject to composite score tests.

A composite score will signify the overall financial health of the higher education institutions along a scale of -1.0 to 3.0. A score of 1.5 or higher is considered financially responsible. A score of 1.0 to 1.4 is still financially responsible but invites oversight from DOE, including cash monitoring.

Schools with scores of less than 1.0 are considered financially irresponsible and can only participate in federal student financial aid programs under a provisional certification.

Sixty-five nonprofit institutions currently fall into the failing category, according to the National Association of College and Business Officers. The Washington, D.C.-based postsecondary advocacy group says an additional 62 private nonprofits are in the 1.0 to 1.4 range.

“NACUBO and other associations have long questioned (the Department of Education’s) methodology in calculating the composite scores,” the organization explained in a statement this week.

It’s not yet clear how the Trump administration will address the Obama-era regulations, but the options are clear: stay the course, rollback unnecessary overreach or effectively scrap the new rules altogether.

According to the Department of Education, composite financial score ratings, like the gainful employment rule, “is not a reflection of the quality of education at a given school.”

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William Patrick is a Florida reporter for Watchdog.org. Contact him at wpatrick@watchdog.org and @WmPatFL.

House speaker’s ‘corporate welfare’ crackdown runs into Senate roadblock

Enterprise Florida Inc. could survive 2017 after all.

Established in 1996, the taxpayer-funded organization has awarded nearly $2 billion in economic incentives to private businesses to create jobs and boost the state economy.

Its record is mixed, and its reputation has been scarred by exorbitant executive pay, high-profile taxpayer losses and a failure to match private funding with public appropriations — a statutory requirement.

As a result, Florida House Speaker Richard Corcoran, R-Land O’Lakes, is spearheading an effort to put the controversial business recruitment agency out of business permanently.

Earlier this month, the House passed a bill that would eliminate Enterprise Florida and nearly two dozen tax incentive programs. The House passed an additional “corporate welfare” bill that would subject Visit Florida, the state’s taxpayer-funded tourism marketing corporation, to the same accountability standards as state government agencies while cutting its annual funding from $76 million to $25 million.

The Senate apparently didn’t get the memo.

Both reforms ran into a roadblock this week when the Senate unveiled its 2017-18 budget proposal. It includes more than $80 million for Enterprise Florida programs and $76 million for Visit Florida. The funding totals align with what Gov. Rick Scott, a Republican, has requested.

Scott, an unabashed proponent of incentives, issued a statement Wednesday endorsing the Senate proposal.

“I want to thank the Florida Senate for listening to our families and job creators by proposing to fully fund Enterprise Florida and Visit Florida,” said Scott, who serves as chairman of Enterprise Florida’s board of directors.

“Unfortunately, at this time the Florida House has chosen to continue ignoring the Floridians they serve. The House’s decision to severely cut the budget of Visit Florida is especially shocking when we look at how disastrous this has been in other states,” Scott said.

Corcoran has yet to release a statement, but has continued to make his case publicly since both House reform bills passed during the first week of the annual legislative session.

“Instead of picking winners and losers in the marketplace, which does more on its own to lift people out of poverty, they ought to be using that money for education, for infrastructure, for giving back taxes to the people or broad-based, fair tax cuts in the business marketplace, which is why people move here more than any other reason,” Corcoran told the Panhandle Tiger Bay Club.

Amy Baker, the Legislature’s top economist, told lawmakers in January that 70 percent of the state’s incentive programs fail to deliver a positive return on investment.

Scott and other incentive advocates contend that taxpayer resources are necessary to entice businesses from going to other states.

“Over and over again, politicians in the House have failed to understand that Florida is competing for job creation projects against other states and countries across the globe. Eliminating Enterprise Florida means we will not be able to effectively compete for new opportunities,” Scott said Wednesday.

The Legislature is constitutionally required to pass an annual budget. Corcoran said in his Tiger Bay remarks that he’s ready for a special session beyond the May 5 regular session deadline if the Senate is unwilling to abolish Enterprise Florida, which he referred to as an “absolute cesspool.”

Will Florida pre-empt local governments to complete next-gen wireless connectivity?

From smartphones to smart cities. The next generation of wireless connectivity will require enough signal coverage to support the exploding demand for consumer data use, and innovative new technologies such as driverless cars.

But it will take a massive influx of wireless communications infrastructure to achieve, according to Beth Cooley, state legislative affairs director for CTIA, a nonprofit membership association of wireless communications companies.

“Look at your iPhone or cellphone,” Cooley told a Florida House legislative panel in February. “In the upper right-hand corner, you’ll see 4GLTE (Fourth Generation Long-Term Evolution). That’s today’s network. The rollout of 4GLTE was completed in 2010.”

Cooley said wireless providers will need to “densify” existing networks to support 5GLTE. The proposed solution is to place small-cell towers on utility polls on public rights of way to complement coverage from large, traditional communications towers, especially in high-traffic network areas.

A pair of bills advancing through the state Legislature are paving the way for the hockey puck-to-pizza box-sized small cells – but not without opposition.

“I think every city and county in the state is against this,” said Sen. Kevin Rader, D-Boca Raton.

The main objections raised Monday in a Senate Government Oversight Committee were aesthetic — seasoned with a dose of worry about the loss of a potential revenue source.

Florida law authorizes the state Department of Transportation and local governments to prescribe and enforce reasonable regulations for placing and maintaining structures within public rights of way.

“In return, we get rent,” said Eric Poole, deputy director of policy for the Florida Association of Counties.

Senate Bill 596, approved 5-1 by the Oversight Committee, would shift local control of right of way access for small-cell technology to the state. It also would create a 60-day time limit for permit applications, and cap pole attachment fees at $15 per year.

According to a staff analysis, Jacksonville’s municipal utility service charges $1,236 per year for each small-cell site. The DOT receives $1.8 million annually for one of its small cell leases.

Cooley said such costs — along with the cost of new poles if access to existing utility poles are denied — will be passed on to consumers. Cooley told a House Energy and Utilities Subcommittee last month that small cells are needed on every seventh pole in high-congestion urban areas.

“The spectrum it’s going to operate on doesn’t travel as far as a large macro-tower,” she said.

A representative from the Florida League of Cities called the legislation “outrageous,” adding that the $15 annual fee limit is inadequate and that the small cells present a “nightmare for public safety.”

The Senate committee’s chairman, Dennis Baxley, an Ocala Republican, said the rights of way belong to everyone.

“Having served in local government and statewide government, there’s always a tension on how to balance having thousands of entities to deal with in order to achieve a goal, and at the same time honor each community and its needs,” Baxley said.

“We need to move on a path of expanding technology,” he added.

Wireless infrastructure providers have begun deploying small cells in select jurisdictions, and have reported being hampered by some local governments, including the cities of Tallahassee and Fort Lauderdale and Pinellas County, either through regulation or temporary bans.

Fort Lauderdale recently extended a small-cell moratorium from six-months to more than 30 months.

Pre-empting local control and capping pole attachment fees would expedite 5G infrastructure deployment necessary for an expected 2020 rollout. All existing pole-attachment agreements would have to comply with the new legislation by Jan. 1, 2018.

The bill’s critics are crying out for home-rule, even even while acknowledging the demand for expanded wireless connectivity.

“When we come up here to Tallahassee, I think we just forget where we come from,” said Rader, the lone dissenting vote. “On the other hand, every one of my constituents wants this type of service.”

Under the legislation, local governments would be allowed to charge permitting fees as currently outlined in Florida law. If charged, the local communications services tax would have to be reduced by 0.12 percent. Forgoing permitting fees would allow for an increase of 0.12 percent in the local communications tax.

“Everybody is data-hungry,” Cooley told lawmakers. “That’s only going to increase.”

The Senate bill will next be referred to the Rules Committee. A companion House bill has advanced to the Commerce Committee after sailing through its previous stop, 12-2.

‘Safety valve’ wanted for mandatory-minimum drug law

In 2008, an Orange County, Florida, judge sentenced William Forrester to 15 years in prison for 15.6 grams of oxycodone, or about 30 pills.

Forrester was on disability insurance and had a lung surgically removed due to cancer not long before his arrest, according to court documents. But possession of the oxycodone, combined with a forged prescription to obtain it, turned him into a narcotics trafficker under Florida’s mandatory minimum drug law.

“If was an option, then certainly we would talk about it. But my hands are tied by the law, and I have to sentence you to 15 years, and there’s no ifs, ands or buts about it,” said Judge Mark Blechman.

Forrester will be 65 years old upon his scheduled release in 2021.

According to a new policy brief by the James Madison Institute, a conservative Tallahassee-based think tank, there are 2,310 inmates serving mandatory minimum prison terms in Florida for hydrocodone and oxycodone trafficking offenses.

Not all of them are in for selling pills.

The highly-addictive opioids are legal pain medications when prescribed by a doctor, and can leave some people hooked after their prescriptions expire.

Florida’s tough drug laws, passed in 1999, were meant to punish drug dealers. But mandatory sentencing for hydrocodone and oxycodone — ranging from three years to life in prison — can be triggered by as few as 27 hydrocodone pills, or 14 oxycodone pills.

Under the law, illegal possession of small amounts of the pills is considered drug trafficking.

Patients recovering from surgery often receive a one-time prescription of 30 to 60 hydrocodone or oxycodone pills, and in forms containing acetaminophen, or Tylenol, according to the Office of Program Policy Analysis and Government Accountability, a legislative research office.

An attempt to illegally obtain an equal amount qualifies for an automatic prison sentence.

Author Laura Krisai, a JMI adjunct scholar and director of criminal justice reform at the Reason Foundation, says it’s time for the Legislature to adopt a “safety valve.”

“Public safety is not enhanced when individuals are incarcerated for years longer than necessary,” Krisai says.

A safety valve provision would allow judges to exercise discretion when sentencing individuals in cases where Florida’s mandatory sentences don’t fit the crimes.

“Safety valve legislation neither eliminates the underlying mandatory minimum sentencing law, nor does it require judges to sentence offenders below the minimum term. It is a narrowly tailored exception for certain offenders and under certain circumstances,” the brief says.

An analysis of Florida Department of Corrections data shows that 83 percent of prisoners incarcerated for hydrocodone and oxycodone trafficking have never been to prison before, or had only previously served time for nonviolent offenses.

The Department also considers 435 of the trafficking offenders to be elderly, defined in the state prison system as over 50 years old.

A safety valve measure, the brief says, also would save millions of taxpayer dollars.

In fiscal year 2014-15, the DOC reported an average cost $53.49 per day to house an inmate in a state correctional facility. The 2,310 hydrocodone and oxycodone traffickers cost a combined $123,562 per day, or $45.1 million per year.

If the 83 percent of first-time and nonviolent traffickers had their mandatory prison terms reduced by one-year when they were sentenced, the state would save $33.3 million.

“There’s no evidence from Florida or elsewhere that shows when judges are allowed to determine sentences — or, to judge — public safety is threatened,” Krisai concluded.

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William Patrick is a Florida reporter for Watchdog.org. Contact him at wpatrick@watchdog.org and @WmPatFL.

Lawmakers aim to create jobs by cutting occupational licensing red-tape

Braiding hair without a license could get you in trouble in Florida.

So could cutting and wrapping hair, manicuring fingernails, auctioneering property, landscaping, interior design and timekeeping at a boxing match.

If you want to earn money or start a business in dozens of job categories, Florida requires a state-approved license – and they don’t come cheaply.

Barbers are required to complete 1,200 hours of training – equivalent to 25 hours a week for one year – to be eligible for licensure. Applicants then must pass an exam and pay a $223 fee.

A cosmetology license requires 1,200 training hours at an approved state Board of Cosmetology school, which costs between $5,000 and $20,000, according to BeautySchools.com.

Interior designers need a combined six years of board-approved education and work experience under a licensed designer, then pass a three-part exam costing $1,065 to legally design commercial spaces.

Working without a license has its own costs: up to $500 fines per offense, restraining orders or court ordered injunctions against performing undocumented labor activities.

Critics say such regulations discourage would-be workers, and state lawmakers are considering a bureaucratic downsizing.

bill that would rollback red-tape for nearly two-dozen professions passed an important House appropriations subcommittee Tuesday at the Florida Capitol. The bill was approved with bipartisan support, 12-2.

“We’re trying to lower barriers in order to create jobs,” said Rep. Halsey Beshears, R-Monticello, the bill’s sponsor.

The Institute for Justice, a public interest law firm, pegs Florida as the fourth most restrictive state in the country with respect to occupational licensing regulations. In a study called License to Work, it identified 45 of 102 low-and-moderate income jobs as having burdensome licensing requirements.

“Occupational licenses, which are essentially permission slips from the government, routinely stand in the way of honest enterprise,” the nonprofit firm says. “Instead, they are imposed simply to protect established businesses from economic competition.”

‘Protect the public welfare’

About a dozen industry representatives appeared before the legislative committee, and stated independently that Florida’s occupational regulations ensure public safety and create jobs themselves.

“We regulate not to keep people out of business, or to create barriers to business, we regulate to defend the public and protect the public welfare,” said Owen Chad Johnson, secretary and treasurer of the Florida Auctioneers Association.

David Roberts, of the American Society of Interior Designers, told lawmakers that they’ll put people out of business if they deregulate. Stephanie Borras, owner of two Tallahassee salons, said the bill would increase the quantity of workers, but not the quality.

Curtis Austin, executive director of the Florida Association of Secondary Schools and Colleges, said the bill’s proposal to reduce cosmetology training from 1,200 hours to 600 hours would cause a health crisis.

“We are moving in the direction not of red states and blue states, but in the direction of Turkey,” Austin told committee members. “If you look at those places where they deregulate these issues in cosmetology, up to 85 percent of people contract skin diseases.”

The committee’s chairman, Rep. Blaise Ingoglia, R-Spring Hill, said he thought some of the arguments made sense and some did not.

According to bill’s staff analysis, the state Board of Cosmetology issued 28 disciplinary orders against licensed hair braiders, hair wrappers and body wrappers during the 2012- 2015 fiscal years.

“These actions generally did not involve consumer injury, but were technical scope of practice violations,” such as practicing with an expired license or failing to timely renew a license, the analysis states.

Beshears’ bill would eliminate all Florida Department of Business and Professional Regulation restrictions against interior designers, hair braiders, hair and body wrappers, boxing announcers and boxing timekeepers, and would reduce mandatory training hours for barbers, nail specialists and facial specialists.

The Department of Regulation would no longer regulate labor organizations, business agents, talent agencies and auctioneers, but established industry standards and civil and criminal actions would still apply.

Architects, landscapers, geologists and asbestos abatement contractors would no longer be required to obtain certificates of authorization in addition to obtaining their licenses.

Rep. James Grant, R-Tampa, an outspoken critic of occupational regulations, said the bill doesn’t go far enough.

“I believe there are 366 occupational licensures in the state Florida,” Grant said. “I’ve yet to be compelled by any argument that any form of license or regulation is in any way as significant to make a consumer whole as an insurance policy.”

Insurance premiums are much less expensive than an entire bureaucratic scheme, he said.

‘A bunch of arbitrary hoops’

Grant also questioned the licensure education industry.

“One of the things aligned with occupational licenses that I have a very keen interest in exploring is the number of tax dollars that we spend subsidizing higher education for curriculums that are a requirement,” he said.

Lisa Waxman, chair of Florida State University’s interior design program, told lawmakers there are 19 design programs in Florida and urged the committee to “keep things as they are.”

“Florida is a model for the rest of the country,” she said.

Justin Pearson, a senior attorney for the Institute for Justice, offered that Florida is one of only four states in the country that requires a license for interior designers.

Inconsistencies were also noted. Emergency Medical Technicians, or EMTs, need 34 days of training, while massage therapists are required to complete 117 days of training.

“I represent first-generation Americans, minorities and lower-income individuals who want to pursue the American dream,” said Pearson. “But they can’t take a year off of work to jump through a bunch of arbitrary hoops.”

Sal Nuzzo, policy director at the conservative James Madison Institute, called the bill a “good first step,” and said that lowering employment barriers would help released prison inmates find work.

“What are the trades these individuals are learning when they’re incarcerated? They’re learning how to be barbers, cosmetologists and electricians,” Nuzzo said.

In his closing remarks, Beshears said his legislation would help people who can’t afford to pay $5,000 and take 1,200 hours of training before securing a job. “This is about giving that person an opportunity,” he said.

The bill has been referred to the House Commerce Committee. A companion Senate bill passed its first committee stop, and is slated for review in the Senate Judiciary Committee.

 

Sunshine Week: First Amendment Foundation goes to bat for Florida’s right to know

It’s Sunshine Week in the Sunshine State, and not just because it’s Spring Break.

Since 2005, open government and freedom of information advocates have designated March 13-19 as a time to celebrate public transparency and raise awareness about the critical importance of access to government records.

Sunshine Week is timed to coincide with the birthday of James Madison, author of the First Amendment.

True to form, the First Amendment Foundation has been busy at the Florida Capitol battling to ensure the public’s right to know. The Tallahassee-based nonprofit helped restructure a bill this week that would have severely limited access to information if the government decided not to comply with public records laws.

Florida’s “sunshine” law says that “it is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.” But the only real recourse against a government officer or agency that refuses to hand over public information is to challenge them in court.

That can be expensive. As a safeguard, if a judge rules that the government violated public records laws, then the government must pay the record requester’s attorney’s fees.

The mandatory provision “creates a level playing field for someone who can afford to pay for an attorney and those who cannot,” according to the First Amendment Foundation. 

Putting aside the issue of awarding attorneys’ fees with taxpayer money, a new bill would have made the mandatory fee provision optional. By changing the word “must” to “shall,” a judge could deny fees even if the court rules in favor of the citizen.

The potential consequences are enormous.

“Without a penalty provision when the government is wrong, there is no incentive to be transparent and provide citizens with access to information about governmental decision-making.  The result will be fewer challenges brought by citizens, which will certainly result in less government transparency,” says the First Amendment Foundation.

But Tuesday, a compromise was reached and the Senate Judiciary Committee unanimously approved it.

“Under the bill as amended in committee, the fee provision remains mandatory,” Barbara Petersen, the foundation’s executive director, told Watchdog.org.

Petersen sounded the alarm about the proposal in February, then outlined a fix, and recently worked with Sen. Greg Steube, R-Sarasota, the bill’s sponsor, and the Florida League of Cities to amend the bill.

As part of the compromise, the bill also includes a five-day notice requirement that would alert a public records custodian of a pending records request before a lawsuit can be filed, and an additional provision that allows courts to crack down on “improper” records requests – the issue Steube’s bill initially sought to address.

His approach, however, also would have penalized legitimate inquiries and legal challenges.

In recent years, lawmakers have decried a “cottage industry” of records requests that are intended to trigger sunshine violations. Petersen calls them “predatory” requests.

“They’re designed to fail,” she told Watchdog.org. “When the agency doesn’t respond, or doesn’t respond quickly enough, then the requester files suit in civil court. A few days later, they call up the agency and offer to settle for a financial payout with the promise of dropping the lawsuit.”

In 2014, the issue became a statewide concern when a circuit court judge ruled that Jeffrey Gray, a self-described civil rights activist from northeast Florida, was engaged in “a baiting gesture meant to achieve personal financial gain,” rather than a genuine effort to obtain public information.

According to the Florida Bar, the ruling said Gray had been a plaintiff in 18 separate lawsuits involving public records requests in Duval County, and that Gray’s lawyer had paid him when attorneys’ fees were recovered. The judgment said the practice was “nothing more than a scam.”

Knocking out Florida’s mandatory fee provision would halt frivolous, harassing and disingenuous records requests designed to force sunshine violations, but not without collateral damage.

“In doing that, the bill wouldn’t just punish the people who are taking advantage of the system, but the 99 percent of people who make requests because they’re legitimately seeking public records,” Petersen said.

The amendment adopted this week should fix that.

If Steube’s amended bill becomes law, not only will courts continue to award attorneys’ fees when the government wrongfully withholds public information, but courts also would be able to assess attorneys’ fees against anyone who attempts to profit from scamming Florida’s public records system.

Does splitting bill in two edge Enterprise Florida closer to chopping block?

Democratic lawmaker David Richardson appears to be getting his Enterprise Florida wish from his conservative House colleagues.

The Miami Beach state rep won’t be getting a grant from the taxpayer-supported economic incentive organization; rather he’ll soon have a chance to help abolish it.

House leadership, headed by Speaker Richard Corcoran, R-Land O’Lakes, will be splitting a bill aimed at eliminating Enterprise Florida and reducing Visit Florida’s taxpayer-funded tourism marketing budget by 67 percent into two bills, according to the Orlando Sentinel.

The move incorporates feedback from a House Appropriations Committee last week.

“I have very little good to say about Enterprise Florida and the way it has been conducted in the past,” Richardson said during the committee meeting, echoing sentiments from the organization’s toughest critics.

But after recounting several issues, such as the public-private partnership’s 90-10 taxpayer-to-private funding ratio, poor performance and a cash “slush fund” used to purchase furniture and pay for travel, Richardson voted against cutting Enterprise Florida.

He disagreed with the proposed funding reduction on Visit Florida, so said he had no other choice but to cast a dissenting vote because the two organizations were packaged together.

“But if you pull out Enterprise Florida … I’d be happy to kill it for you,” he said.

Splitting the bill in two also honors Rep. Paul Renner’s, R-Palm Coast, commitment to Democratic Minority Leader Janet Cruz, D-Tampa, to allow for further debate on Visit Florida funding. With that promise, Cruz, the highest-ranking House Democrat, voted to eliminate Enterprise Florida last week.

Richardson, Cruz and other Democrats will have an opportunity to vote with their GOP counterparts, perhaps by late next week.

HB 7005 is scheduled to be split Monday in the House Rules and Policy Committee. All references to Visit Florida will be moved to a new bill, HB 9, and the remaining language would eliminate Enterprise Florida, as well as the Office of Film and Entertainment and 22 other incentive programs.

The formal legislative session begins Tuesday, and House lawmakers could schedule floor votes on both bills before the end of the week.

Gov. Rick Scott, a Republican, is vehemently opposed to eliminating Enterprise Florida and reducing funding for Visit Florida. Scott wants $85 million and $76 million for the taxpayer-supported organizations, respectively, this year.

Corcoran and Scott released dueling videos last week in an attempt to build public support for their positions. Corcoran’s message, Session is Coming, focuses on ridding the legislature of “corporate welfare,” while Scott’s Fighting for Florida Jobs features business leaders and economic development officials touting the benefits of public assistance.

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William Patrick reports for Florida Watchdog. Contact him at wpatrick@watchdog.org and on Twitter.

Task force would seek to remake Florida’s criminal justice system

Florida’s state lawmakers increasingly are embracing criminal justice reform policies that break with the state’s “tough on crime” past. But a sea change could be in the works.

But a sea change could be in the works.

Last year, Gov. Rick Scott, a Republican, and the GOP-controlled legislature approved one of the most far-reaching civil asset forfeiture reforms in the country, repealed a 10-20-life mandatory minimum sentencing law, and expanded health care delivery for mentally ill inmates. Mental health advocates say as much as 40 percent of Florida’s prison population needs treatment.

Dozens of reform-related bills already have been filed ahead this year’s state legislative session.

Now, it’s time to go big.

Seizing on momentum, Sen. Jeff Brandes of St. Petersburg wants to remake the entire system.

“If you look around the country, many other states are leading on criminal justice reform. It’s a wave that’s just starting to hit Florida,” Brandes told Watchdog.org.

“It’s time to look at a holistic view about how to transform the system,” he said.

Brandes is seeking legislative approval to form a task force to conduct a comprehensive review of Florida’s criminal justice, court and corrections systems.

Ultimately, the task force would submit a report with findings, conclusions and recommendations to be molded into legislation for the 2018 state session.

Overhauling state prisons may be the first priority.

“We have prisons that are in a kind of crisis mode right now. We’re having a tough time hiring guards. Contraband rates are through the roof. Our education of prisoners is at rock bottom, and recidivism is a struggle for the state,” Brandes said.

Membership must reflect the racial, gender, geographic and economic diversity of the state, as well as the diversity and demographics of the state’s prison population, according to the proposal. The 28-member group would include members of the House and Senate, judges, academics, faith leaders, victims’ advocates, public defenders, law enforcement officials and even prison inmates in good standing.

Brandes said he has been in contact with groups such as the Crime and Justice Institute and Pew Research Center to discuss how to approach the issue and what possible outcomes might look like.

The task force would use a data-driven approach to arrive at sentencing and corrections recommendations for the purpose of:

— Reducing the state prison population.

— Decreasing spending by focusing on serious offenses and violent criminals.

— Holding offenders accountable through research-based supervision and sentencing practices.

— Reinvesting savings into strategies known to decrease recidivism, including reentry outcomes.

“We think states like Texas are thought leaders in criminal justice reform. It’s time for Florida to follow Texas’s lead on the criminal justice issue and to get serious about criminal justice reform,” Brandes said.

Florida is often compared to Texas both economically and demographically. In 2007, Texas instituted a nationally recognized reform package, and has added to it ever since.

When asked to describe possible obstacles, Brandes said, “Most arguments in the Legislature are fortress versus frontier arguments. I’m, almost to a fault, with the frontiers.”

According to the proposal, task force members would receive no taxpayer compensation for their work.

SCOTUS nominee Neil Gorsuch and ‘over-criminalization’

President Donald Trump’s nomination of  Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, sparked a predictably hostile response from Democrats. But Gorsuch’s record on criminal justice reform offers a rare opportunity for bipartisan agreement.

Gorsuch tipped his hand at a gathering of conservative attorneys in Washington, D.C., three years ago by addressing the issue of “over-criminaliztion.”

NEIL GORSUCH: President Donald Trump’s U.S. Supreme Court nominee has publicly addressed the explosion of criminal justice laws, sometimes called “over-criminalization.”

Speaking at the Federalist Society’s National Lawyers Convention in 2013, Gorsuch said, “we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year.”

“Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars have given up counting and are now debating their number,” he continued.

“What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity,” he asked.

The question highlights an alarming problem, but one that hasn’t gone unnoticed in some quarters of both the left and right.

“From federal agencies independently attaching jail time to otherwise noncriminal behavior to U.S. lawmakers punishing crimes best dealt with by states, the problem of over-criminalization is growing,” explains the libertarian Cato Institute.

The conservative Heritage Foundation cites the explosion of criminal laws as a major area for reform, and the American Bar Association hosts an over-criminalization task force to educate attorneys on the “urgent problem.”

The left-leaning American Civil Liberties Union has turned its attention to confronting social inequities born from criminalizing broad swaths of everyday life. It launched a Criminal Justice Reform Project to reduce “excessively harsh criminal justice policies” that result in racial disparities and disproportionate sentencing.

One outgrowth of having too many criminal laws is what critics call “mass incarceration.”

“America, land of the free, has earned the disturbing distinction of being the world’s leading jailer. Representing just 5 percent of the world’s population, we now hold 25 percent of its inmates,” the ACLU says.

The Prison Policy Initiative, a nonprofit research organization, says over-criminalization and high rates of incarceration go hand-in-hand to “undermine our communities and national well-being.” The group cites Florida as having one of the highest incarceration rates in the country.

“Historically, ‘crime’ was a term restricted to morally blameworthy actions, but today, many ordinary activities are captured by the term,” says Right on Crime, a project of Texas Public Policy Foundation.

In his Federalist Society remarks,  Gorsuch cited absurd examples of overreach.

“It’s now a federal crime to misuse the likeness of Woodsy the Owl,” Gorsuch said.

“Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag? Yes, they’re probably federal criminals too,” he said.

The full speech can be seen here:

Proposed legislation could break the cycle of debt for many caught in Florida’s legal system

It’s a vicious circle: Poor people who can’t afford their court-related costs and penalties incur escalating costs for not paying, further indebting them to the state.

“It’s a circle that some people get stuck in and they can’t get out,” Christopher Torres, a Tallahassee defense attorney and former Florida assistant attorney general, told Watchdog.org.

Compounding the problem is the state’s practice of suspending drivers’ licenses as both a punishment for delinquent payments and an incentive to get people to pay up. For those who can’t afford their financial obligations, the suspensions only add more obstacles to meeting debts and ultimately moving on.

A new reform bill aims to break the cycle.

Republican state Sen. Jeff Brandes of St. Petersburg is proposing legislation to modify legal-debt payment terms and prohibit drivers’ license suspensions statewide for individuals demonstrating an inability to pay court obligations and other legal penalties.

The St. Petersburg Republican is teaming up with state Sen. Darryl Rouson, a Tampa Bay-area Democrat, to push the reform measure. An identical bill, also sponsored by Brandes, died in an appropriations committee last year despite unanimous support from fellow legislators at two separate committees stops.

Brandes sits on the Senate Criminal Justice Committee and helped pass a landmark civil asset forfeiture bill in 2016. A second attempt at reforming legal system costs and burdens indicates renewed confidence that the reforms could pass this year.

Local clerks of court are required to accept monthly debt payments equal to one-twelfth of 2 percent of a person’s annual net income. It’s a flexible standard meant to accommodate various income backgrounds.

But payments are often arranged inflexibly and at higher rates.

“In Florida, this presumption is often ignored and payment levels are set at fixed amounts,” states a Brennan Center for Justice report on criminal justice debt.

Brandes’ bill would cap annual payments made to local clerks of court at no more than 2 percent of annual net income, unless an applicant agrees to pay more.

In Florida, clerks of court also turn over unpaid accounts after 90 days to private attorneys or debt collection services. State law allows them to tack on 40 percent surcharges to underlying debts.

The proposed legislation wouldn’t abolish the surcharges, but it would limit the amount of time private collectors could pursue legal system debts to no more than 5 years. It would also deny any additional charges beyond what clerks of court contractually negotiate through an open bidding process.

Suspension problems

With respect to drivers’ licenses, prohibiting suspensions for low-income people would help tackle the inherent inefficiency of obstructing good-faith efforts to drive to work and earn an income.

“Most people in Florida are dependent on driving,” Torres said. “If you can’t drive then it’s harder to work or find employment. … Getting caught driving illegally means new problems added to old problems, maybe even an arrest, and the cycle starts over again.”

According to the Florida Department of Highway Safety and Motor Vehicles, 1.5 million notices of suspension were issued in 2014, mostly originating from “failure to comply” or “failure to pay” offenses.

The Office of Program Policy Analysis and Government Accountability, a legislative research office, reports that a large percentage of license suspensions relating to delinquent court costs take more than two years to reinstate.

Reinstatement requires full payment of all financial obligations, enrolling in a payment plan (if not already enrolled), or a court order granting relief.

The amount of time and money involved for many suspension reinstatements leaves the door open for illegal driving. The American Association of Motor Vehicle Administrators estimates that as many as three-fourths of drivers with suspended or revoked licenses continue to drive.

Torres said the penalties for driving with a suspended license hinge on intent. If a law enforcement officer determines that an individual was driving “without knowledge” that their license was suspended, then the penalty is a civil offense punishable by a traffic ticket.

If an officer determines that a driver was “knowingly” driving with a suspended license, then the offense is criminal and warrants arrest.

Under current law, hardship exemptions for business or employment purposes do not apply for failing to pay court obligations and legal penalties, even though they’re available for many driving-related suspensions, such as driving under the influence.

Prohibiting license suspensions for indigents, disabled persons, bankrupt individuals and government assistance recipients could enhance efforts to pay off legal obligations and reduce the cycle of escalating burdens and taxpayer resources required to sustain the merry-go-round process.

The question may be whether the state and local governments are willing to lose the revenue streams.

Revenue vs. debtors

According to a legislative staff analysis, if Brandes’ 2016 bill would’ve passed it would’ve caused significant government revenue losses.

“The bill would likely have a negative impact on local tax collectors and clerks of court who retain a portion of revenues from certain drivers’ license sanctions when issuing reinstatements, in addition to other fees retained by them associated with drivers’ license suspensions and revocations.”

The Florida Court Clerks and Comptrollers, a statewide association, estimated clerks of court would suffer annual losses ranging from $24.7 million to $82.4 million, depending on the success of the reforms.

If 15 percent of collections were lost because of the new payment plan modifications, licensing reforms, or the bill’s promotion of community service as a way to pay work off debts at minimum wage, then clerks of court could lose an estimated $24.7 million in revenue.

If participation jumped to 50 percent, then $82.4 million in estimated losses could result.

Add on another $7.5 million in annual recurring funds for new full-time employees and IT support for payment plan maintenance, and legislators might balk at the reforms again.

But the issue isn’t going away. Criminal justice reformers are confronting financially burdensome, and sometimes insurmountable, legal system practices across the country.

Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation, says the cycle of escalating court obligations and legal penalties is too expensive in both human and taxpayer costs.

“While there is a legitimate role for fines and fees, their use has skyrocketed over the last few decades, with the penalties appearing to be more tied to generating revenue for government rather than legitimate public safety purposes,” he said.

The American Civil Liberties Union asserts that “state and local courts have increasingly attempted to supplement their funding by charging fees to people convicted of crimes, including fees for public defenders, prosecutors, court administration, jail operation, and probation supervision.”

The debate between revenue and reform will be heard at the state Capitol when the annual legislative session convenes on March 7.

Last year, the Florida Court Clerks and Comptrollers association reported $894 million in total collections for court costs, monetary penalties, fees, service charges and other costs. The collection rate was 73 percent.

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