The Issue The following issues were presented by the Petitioner or arose at hearing: Was a proper investigation and showing of interest made in this Petition? Should Assistant Sorensen be included or excluded from the proposed unit? Whether the appropriate unit should be composed solely of personnel within the Road and Bridge Department.
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of age and/or disability, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Brown was born on November 26, 1932. At the times material to this proceeding, he was licensed in Florida as a security guard. Mr. Brown was hired as a security guard by SSA Security in November 1998, when he was 65 years of age, by Robert Chambers. At the times material to this proceeding, Mr. Chambers was SSA Security's district manager for Broward County and Miami-Dade County, Florida. Mr. Brown resigned his employment with SSA Security in December 2000 and began working for Avis Rent-A-Car. He left his position with SSA Security because it did not pay any benefits; he received full benefits as an employee of Avis Rent- A-Car. In or around December 2000, Mr. Brown was fitted with a pacemaker because of a heart condition.4 When Mr. Brown lost his job with Avis Rent-A-Car, he applied to SSA Security for employment, and Mr. Chambers re-hired him as a security guard in January 2003. At the time, of his re-employment by SSA Security, Mr. Brown was 70 years of age. Even though Mr. Brown had a pacemaker to regulate his heartbeat in 2003, he was at all times capable of performing all of the essential functions of a security guard and, in fact, wanted to return to employment as a security guard because he could do the job notwithstanding his heart condition. At the times pertinent to this proceeding, Mr. Brown's direct supervisor was Owen James, the area manager with SSA Security, who reported to Mr. Chambers. Mr. Brown also was supervised by SSA Security's on-duty road supervisors during the time he was actually working. On October 3, 2004, Mr. Brown signed an Application for Employment with SSA Security, and he was provided with a copy of the SSA Security Employee Rules and Regulations. He acknowledged receipt of the rules and regulations and of the Security Officers Handbook with his signature, dated October 3, 2004.5 The introductory paragraph of the Employee Rules and Regulations stated that SSA Security employees were to carry a copy of the Security Officers Handbook with him or her when on duty and advised the employees that they "could be subject to discipline, suspension or discharge" if he or she violated any of the employee rules.6 The first rule included in the Employee Rules and Regulations prohibited "[l]eaving a posted duty prior to being properly relieved." It is Mr. Chambers's policy to terminate the employment of persons who abandon their posts, that is, who leave their posts without being properly relieved, and he terminated at least 10 employees for abandoning their posts between 2007 and 2009. At the times material to this proceeding, SSA Security provided security services at several United Parcel Service facilities, including the United Parcel Service Sheridan ("UPS Sheridan") facility and at the United Parcel Service Davie ("UPS Davie") facility. At the times material to this proceeding, the UPS Sheridan facility was a "UPS hub" that operated 24 hours a day, and SSA Security provided security for the facility 24 hours per day. The UPS Sheridan facility is categorized as a "soft target" because, if anyone got into the facility, he or she could steal UPS uniforms and trucks and could, thereby, gain access to many businesses and residences. The UPS Davie facility housed employees working in customer service and administration, and the facility closed every day. At one time, Mr. Brown was assigned to both the UPS Sheridan facility and the UPS Davie facility. He worked at the UPS Sheridan facility from 10:00 p.m. until 3:30 a.m., when he left and went to the UPS Davie facility, where he worked from 4:00 a.m. until approximately 5:30 a.m. During his time at the UPS Davie facility, Mr. Brown escorted the employees working at the facility to their vehicles, and, when the last employee was escorted to his or her vehicle, Mr. Brown was free to go home. Mr. Brown was not relieved by another security guard at the UPS Davie facility. In or about January 2007, the UPS Davie facility was closed, and Mr. Brown was assigned to work at the UPS Sheridan facility from 12:00 a.m. until 4:00 a.m.7 His duties at the UPS Sheridan facility after his work hours changed, and specifically in June 2008, were to patrol the perimeter of the facility and ensure that the facility was not breached. Mr. Brown did not enter the building as part of his duties because, prior to 4:00 a.m., the building was locked. At 4:00 a.m., a UPS supervisor would unlock the building and another SSA Security security guard was scheduled to come on duty. This security guard’s duties were to secure an entryway into the building and scan employees coming in and out of the facility as they passed through a metal detector. SSA Security’s procedure at the UPS Sheridan facility required Mr. Brown to wait at his post at the facility until the security guard assigned the 4:00 a.m.-to-8:00 a.m. shift arrived. According to procedure, if this security guard was late, Mr. Brown was to call either SSA Security's 24-hour dispatch, which was reached by calling the local SSA Security office, or the local on-duty road supervisor and a relief officer would be sent to the UPS Sheridan facility to take over the post. Mr. Brown was trained in this procedure by the road supervisor on duty at the time Mr. Brown began working the 12:00 a.m.-to-4:00 a.m. shift at the UPS Sheridan facility. On May 27, 2008, Mr. Brown had a routine doctor's appointment. The doctor told Mr. Brown after the examination that he needed to go to the hospital that night because of his heart condition. Mr. Brown called the SSA Security office at approximately 4:50 p.m. on May 27, 2008, and spoke with Jeanine Williams, who was a receptionist. Mr. Brown explained to Ms. Williams that he was being hospitalized and could not report to work because of his "regular heart condition."8 This telephone conversation lasted approximately three minutes. Mr. Brown did not speak with Mr. Chambers or with his direct supervisor, Mr. James, on May 27, 2008, and he did not inform either of them of his heart condition in June 2008. He did not do so because he believed he had advised Mr. Chambers of his heart condition in 2000, when he was fitted with the pacemaker. Mr. Chambers has no recollection of Mr. Brown having told him of a heart condition in 2000, and Mr. Chambers was not able to locate anything in Mr. Brown's personnel file related to such a medical condition. Mr. Brown was discharged from the hospital on June 2, 2008. He did not submit any documentation of his hospitalization to SSA Security or provide Mr. Chambers with any explanation of the reason for his absence from work. Upon his discharge from the hospital, Mr. Brown had minimal temporary restrictions on his activities as a result of his heart condition. The primary restriction, as described by Mr. Brown, was that he was unable to do any lifting. He was, however, able to perform the essential functions of his job as a security guard. Mr. Brown reported to his post at the UPS Sheridan facility on the morning of June 4, 2008, at his normal time of 12:00 a.m. His shift ended at 4:00 a.m., at which time the SSA Security security guard who manned the post inside the facility was to report for work. Mr. Brown knew that another security guard was to begin work at the UPS Sheridan facility at 4:00 a.m., but, when the security guard had not arrived by approximately 4:10 a.m., Mr. Brown left the facility and went home. Mr. Brown had the telephone numbers of both the SSA Security 24-hour dispatch service and the SSA Security on-duty road supervisor, but he did not notify anyone at SSA Security that he was leaving or that the new security guard had not reported for duty at the UPS Sheridan facility. Mr. Brown also did not notify anyone at the UPS Sheridan facility that he was leaving the facility unguarded because the security guard assigned to work the 4:00 a.m. shift had not yet arrived. At approximately 7:30 a.m., Mr. Brown received a call from Captain Linda Webb, the SSA Security road supervisor responsible for the UPS Sheridan facility on the morning of June 4, 2008, and Mr. Brown's immediate supervisor during his shift on June 4, 2008. Captain Webb asked Mr. Brown where he was, and he replied that he was at home. Captain Webb asked Mr. Brown if he left his post before the other security guard had arrived,9 and Mr. Brown responded that it was his understanding that he did not need to be relieved at his post at the UPS Sheridan facility and that had never been relieved at that post. Although Mr. Brown had been told by a supervisor that he could leave his post at the UPS Davie facility without being relieved, no one in a supervisory position with SSA Security told Mr. Brown that he could leave his post at the UPS Sheridan facility at 4:00 a.m., regardless of whether the security guard assigned to work the 4:00 a.m. shift had arrived at the facility.10 Captain Webb wrote a Personnel Action Form summarizing the incident, which was categorized as Mr. Brown's having "abandoning the post." At approximately 2:30 p.m. on June 4, 2008, Mr. James called Mr. Brown and asked why he had left his post at the UPS Sheridan facility without being relieved by the guard who was assigned to the post inside the building. Mr. Brown stated that he was never relieved at his post at the UPS Sheridan facility. Mr. James told Mr. Brown not to return to the post at the UPS Sheridan facility but to come into the SSA Security office. Mr. Brown believed that Mr. James wanted to "get rid" of him.11 Mr. Brown spoke with Mr. Chambers on the telephone on June 4, 2008, and Mr. Chambers told him that, in directing Mr. Brown not to return to his post at the UPS Sheridan facility, Mr. James was following the instructions given to him by Mr. Chambers. Mr. Chambers met with Mr. Brown on June 5, 2008, at his office, and they discussed the incident that occurred on June 4, 2008. Mr. Chambers asked him why he left his post at the UPS Sheridan facility, and Mr. Brown answered that he had a doctor's appointment at 9:00 a.m. on June 4, 2008. Mr. Chambers asked if Mr. Brown had called a supervisor or the dispatch number before he left, and Mr. Brown stated that he had not. Mr. Chambers then advised Mr. Brown that he was terminating his employment with SSA Security. Mr. Chambers's decision to terminate Mr. Brown is memorialized on the Personnel Action Form prepared on June 4, 2008, by Captain Webb, which Mr. Chambers signed and dated June 5, 2008. When Mr. Brown turned in his uniform, Mr. James gave him a copy of the Personnel Action Report prepared by Captain Webb, and Mr. James asked Mr. Brown if he had anything to add. Mr. Brown responded that he did not, and he left the SSA Security office. Mr. Brown was replaced by a person who was 53 years of age. Summary The evidence presented by Mr. Brown is not sufficient to establish that he was the subject of discrimination on the basis of age when he was terminated from his employment at SSA Security. Not only did the evidence fail to establish that age was the motivating factor in his termination, the evidence failed to establish that age was even a consideration when he was terminated. The evidence presented by Mr. Brown is likewise not sufficient to establish that he was the subject of discrimination on the basis of disability. The evidence presented by Mr. Brown did not establish that he was disabled because the evidence failed to establish that he was substantially impaired in any major activity of daily life, that he had a record of an impairment, or that he was regarded by Mr. Chambers as having an impairment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Alfred S. Brown. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 27th day of May, 2010.
The Issue The issue for determination is whether the intended action by Respondent to award RFP 21-203T for Security Guard Services to Intervenor is improper.
Findings Of Fact Respondent wanted to procure security guard services for its various schools, centers, departments, buildings and/or compounds in order to protect its equipment and property from damage or theft. Consequently, on March 19, 2001, Respondent issued RFP 21-203T (RFP), entitled "Security Guard Services," with a contract period from October 1, 2001, through September 30, 2004. The RFP required all proposals to be submitted by 2:00 p.m. on April 24, 2001. At the time of the hearing, the security guard services were being provided by Petitioner under a contract awarded through a previous procurement, RFP 98-146T. The contract was to expire on September 30, 2001. The RFP contains Sections 1 through 9 and Attachments A through F.1 Section 2, entitled "Introduction," provides that the scope of services included, but were not limited to, the requirements contained in the Articles of Agreement, which is Attachment A. Additionally, the said Section set forth the major sites that may be covered under the contract of the RFP, which were described as Group 1 and Group 2. Proposers to the RFP were permitted to offer their security guard solutions to existing and future school sites. Respondent selected the Group 1 facilities consisting of eight school sites for the RFP. Further, Section 2 provides that Respondent reserves "the right to increase or decrease its stated requirements under the hours of coverage for the number of security personnel, location and/or hours from time to time at the hourly rate quoted"; and provides the hours of coverage for each site. Section 3, entitled "Information to be Included in the Submitted Proposal," contains several subsections. Subsection 3.5 requires certain information to be submitted by a proposer with the proposal or within three days of request. Subsection 3.7 requires a proposer to validate its minimum eligibility. Subsection 3.71 requires a proposer to submit a copy of its Florida's security guard services license and submit the license number on the Cost Proposal Sheets Additional Information, which is Attachment B. Subsection 3.8 requires a proposer to show its experience and qualifications through certain submissions. Subsection 3.8.13 requires a proposer to provide a security solution that includes additional security guards and/or hours that differs from the individualized security solution based on a single security guard at the specified sites in the hours of coverage in Section 2. Subsection 3.8.15 requires a proposer to provide an individualized security solution for specified sites based on the information obtained from the attendance of the mandatory site visits. Subsection 3.8.16 requires proposers to "prepare and submit with their proposal, an individualized, concise delineation of their recommendation to protect and secure . . . property on the sites listed in Section 2 . . . ." Additionally, Subsection 3.816 requires the recommendation to "include all personnel, their hours and equipment that proposer intends to provide . . . (i.e. contract (road) supervisor(s), number and level of guards, radios, cars, off-street motorized carts, etc.). Address each group listed on the Cost Proposal Sheets separately." Section 3.10, Cost of Services, requires the prices quoted by a proposer to be "all inclusive and represent security guard services at existing sites and any future identified sites" and requires a proposer to "complete Attachment B, Cost Proposal Sheets, for both Group 1 and 2 and provide an itemized breakdown of the total cost for each site and a total cost for each group." Section 3.10 provides further that the "fundamental responsibilities of the awardee(s) will be to provide the services listed in Articles of Agreement, Attachment A." Section 7 is entitled "Evaluation of Proposals." Subsection 7.1 provides for the evaluation by Respondent's Evaluation Committee of proposals which meet or exceed the minimum eligibility requirements in Section 3.7. The following four categories and maximum points, totaling 100 points, are to be used by the Evaluation Committee: Experience and Qualifications--a maximum of 15 points; Scope of Service Provided--a maximum of 40 points; Minority/Women Business Participation--a maximum of 20 points; and Cost of Services Provided--a maximum of 25 points. Subsection 7 confers broad discretion upon the Evaluation Committee. Subsection 7.2 confers upon the Evaluation Committee the "sole discretion" as to how many of the top-ranked proposers, based on the scoring, it may recommend to be awarded the RFP; as to whether a short list of top-ranked proposers should be established for further consideration and how many should be on the short list; and as to whether to reject all proposals. Subsection 7.4 reserves to the Evaluation Committee the right to negotiate any term, condition, specification or price with the short list proposers. Subsection 7.5 reserves to the Evaluation Committee and Respondent the right to ask clarifying questions after the proposals have been opened, and to interview all or any of the proposers. Subsection 7.5 further reserves to the Evaluation Committee the right to make its recommendations solely on the proposals submitted by the proposers. Section 8 is entitled "Special Conditions." Subsection 8.8 reserves to the Evaluation Committee and/or Respondent the right to waive irregularities or technicalities in proposals received. Section 9 is entitled "General Conditions." Subsection 9.371 reserves to Respondent the right to request additional information, reject any or all proposals that do not meet all mandatory requirements, or reject all proposals received. Subsection 9.37.3 provides for the rejection of a proposal if it fails to conform to the rules or requirements contained in the RFP and provides examples for which rejection may be made, one of which at Subsection 9.37.3.5 provides, among other things, for rejection when a proposal is incomplete, or contains irregularities which make the proposal incomplete, indefinite, or ambiguous as to its meaning. Subsection 9.45 reserves to the Evaluation Committee and/or Respondent the right to waive irregularities or technicalities in proposals. Attachment A, paragraph numbered 2, reserves to Respondent the right to "increase, decrease, delete hours and/or locations." Associated thereto, the said paragraph further provides that "additional locations or additional guards at existing locations shall be furnished at the price quoted on Attachment B, Cost Proposal Sheets." Additionally, the said paragraph reserves to Respondent the right to "choose which pricing group will be used in the evaluation process and sites requiring services during the term of the contract" and to "add, delete or make changes to any guard requirement, including hours of coverage, post location, numbers of posts, number of guards, etc." Attachment B, Cost Proposal Sheets, also reserves several rights to Respondent. Per Attachment B, Respondent has the right to reject all or any of the sites of Group 1 and Group 2, to modify all or any of Group 1 and Group 2, to make an award based on the hourly cost(s) submitted by the proposers, or to reject all proposals and either make the award in total or any portion of the RFP in-house if it is in the best interest of Respondent. Additionally, Attachment B requires proposers to submit, "in accordance with all terms, conditions, specifications and requirements," their annual all-inclusive total cost for each site in Group 1, the annual all-inclusive total cost for all the sites in Group 1, and, as an attachment to the RFP, an itemization of costs for certain specified items for each site in Group 1. The referenced attachment to the RFP is to include, but not be limited to, the itemized breakdown for the costs at each site for the following: number of contract (road) supervisors and their hourly cost; number and level of guards proposed and their hourly cost for each level; total number of coverage hours required; and equipment proposed. Further, Attachment B requires the proposers to list the level (category) of their proposed unarmed security guards and their hourly cost and to list the hourly cost of their unarmed contract (road) supervisors. Some proposers sought clarification of the RFP. As a result, on April 12, 2001, Respondent issued Addendum Number 1 to the RFP, which consists of written responses to proposers' questions and of the provision of a replacement page for the RFP. The replacement page contains minor changes to the RFP. Petitioner did not submit any questions for clarification. Section 9.24 of the Special Conditions of the RFP permits the filing of bid specification protests. However, no bid protest, regarding specifications contained in the RFP or Addendum Number 1, was filed. On April 24, 2001, nine proposals were submitted to Respondent's Purchasing Department. The proposers were Petitioner; Intervenor; Chi-Ada Corporation; Command Security Corporation; 50 State Security Services, Inc.; Gabriel Security of Florida, Inc.; Kemp Security & Investigative Services; Metro Security Services; and Pronto Security, Inc. Evaluation of the proposals was performed by Respondent's Evaluation Committee, which consisted of five members. Each member either possessed knowledge of security guard services or had knowledge of the sites to be guarded. The Evaluation Committee made a recommendation to Respondent for the award of the RFP. The Evaluation Committee first met on May 3, 2001. Prior to the meeting, the members of the Evaluation Committee were provided copies of the proposals submitted, the RFP, Addendum No. 1, score sheets, and cost analysis worksheets. Further, they were provided other evaluation documents relating to categories and point allocations, which correspond to experience and qualifications, scope of services, cost of services, and Minority/Women Business Enterprise (M/WBE) participation. Prior to the meeting, the members read and understood the RFP and the proposals. Technical staff from the Purchasing and W/MBE Departments were available to the Evaluation Committee at the meeting to provide technical support. As to scoring, Petitioner is challenging the scoring for the Cost of Services Provided category found at Section 7.1 of the RFP. Furthermore, Petitioner is not seeking to have any proposer disqualified or found to be non-responsive. Each member of the Evaluation Committee, as directed, used the score sheets in the analysis of the proposals. The score sheets correspond to the four categories found at Subsection 7.1 of the RFP. In scoring the proposals, each member of the Evaluation Committee evaluated the proposals, applying the evaluation criteria in the RFP to the materials provided to him or her, as well as using the presentations made by the technical staff. Each of the four categories was scored separately and independently. No category is interconnected with the scoring for another category. Prior to the meeting, no discussion was had amongst the members as to the method to be used for scoring. The same scoring method was used for each category. The RFP contained no method of scoring, other than the allocation of points found at Section 7 of the RFP. The members of the Evaluation Committee decided on the method of scoring. They independently used their own best judgment and sound discretion in the scoring. The method decided upon and used was that each member would independently score each proposer on each category, using the maximum number of points in Section 7; the proposer with the highest overall all-inclusive cost for a category would be allocated the lowest number of relative points and the proposer with the lowest overall all-inclusive cost would be allocated the highest number of relative points; the points allocated for a category to a proposer would be totaled and averaged; and the average number of points for a proposer would be the total and final score for a proposer for that category. The members of the Evaluation Committee scored the Cost of Services category of the proposals based on the annual all-inclusive total cost submitted by each proposer, using the scoring method devised by the members. Section 7.1 of the RFP provides that the maximum number of points for the Cost of Services category is 25, thereby providing a range of points from 0 to 25. Petitioner's annual all-inclusive total cost for the security guard services for Group 1 is $779,431.53. Each member of the Evaluation Committee utilized this amount in allocating the points for the Cost of Services category. Petitioner's annual all-inclusive total cost includes the number of guards, road supervisors, vehicles, hourly rates, and hours of coverage. The points allocated to Petitioner for the Costs of Services category by each member of the Evaluation Committee are as follows: three members allocated 5 points each; one member allocated 8 points; and one member allocated 3 points. Petitioner received an average of 5.2 points. Petitioner's points for the Cost of Services category is 5.2. Petitioner received the lowest number of points for the Cost of Services category of all the proposers and, therefore, received the lowest score for that category. The lowest score means that Petitioner, amongst all the proposers, submitted the highest annual all-inclusive total cost for the Cost of Services category. The points allocated by each member to Petitioner are within a reasonable range and do not appear and are not considered to be an aberration. Intervenor's annual all-inclusive total cost for the security guard services for Group 1 is $440,279.75. Each member of the Evaluation Committee utilized this amount in allocating the points for the Cost of Services category. At hearing, evidence was presented that, due to a clerical error, Intervenor had omitted the cost of road supervisors from its annual all-inclusive total cost. The members of the Evaluation Committee were unaware of this clerical error when they evaluated Intervenor's proposal. The members of the Evaluation Committee considered Intervenor's annual all-inclusive total cost to include the number of guards, road supervisors, vehicles, hourly rates, and hours of coverage and evaluated the proposal as such. At hearing, Intervenor stated that it would be bound by the annual all-inclusive total cost as submitted and, therefore, the road supervisors would be included in the total cost submitted. Consequently, no harm has been shown to have occurred as a result of the omission. Additionally, Intervenor failed to provide an itemized breakdown of all its guards and hours of coverage in Attachment B of the RFP. However, Petitioner is not seeking to disqualify Intervenor's proposal as being non-responsive. Regardless, Intervenor's proposal does contain, albeit in Attachment B, the number of security guards and hours of coverage for each site in Group 1, and the number of road supervisors. The hourly rate for guards and road supervisors are in Attachment B. Therefore, even though the information is not itemized, all the information needed is contained in Intervenor's proposal. Hence, the lack of itemization is not a material deviation and is considered waivable. The points allocated to Intervenor for the Costs of Services category by each member of the Evaluation Committee are as follows: three members allocated 20 points each and two members allocated 25 points each. Intervenor received an average of 22 points. Intervenor's points for the Cost of Services category is 22. Intervenor received the highest number of points for the Cost of Services category and, therefore, received the highest score for that category. The highest score means that Intervenor submitted the lowest annual all-inclusive total cost for the Cost of Services category. The points allocated by each member to Intervenor are within a reasonable range and do not appear and are not considered to be an aberration. Petitioner also finds fault, regarding another proposer, Metro Security Services (Metro), in the scoring by the Evaluation Committee in the Cost of Services category. Metro's proposal as to an annual all-inclusive total cost is only on an hourly rate basis, not the total cost. In order to obtain an annual all-inclusive total cost for the Cost of Services category, the Evaluation Committee, themselves, performed calculations using the hourly rate submitted by Metro. The Evaluation Committee took the total number of hours of coverage for one guard and multiplied that number by the $10 per hour rate submitted by Metro, which produced the annual all-inclusive total cost for Metro. Based upon the number calculated to be the annual all-inclusive total cost, the Evaluation Committee allocated points to Metro. The points allocated to Metro for the Cost of Services category by each member of the Evaluation Committee are as follows: three members allocated 12 points each, one member allocated 15 points, and one member allocated 14 points. Metro received an average of 13 points. Metro's points for the Cost of Services category is 13. Metro's points are more than Petitioner's points in the Cost of Services category, which means that Petitioner's annual all-inclusive total cost is more than the annual all-inclusive total cost calculated by the Evaluation Committee for Metro. Metro was not considered for award of the RFP. Metro received the sixth highest ranked total score. Metro is not challenging Respondent's intended award of the RFP to Intervenor. Metro has not sought to intervene in this proceeding, and Petitioner cannot represent the interest of Metro in the instant case. The action by the Evaluation Committee of calculating and scoring Metro's annual all-inclusive total cost for the Cost of Services category was reasonable, rational, and fair. Their action is not shown to be and is not considered materially affecting or significantly impacting the scoring or the process of the RFP. Metro provided the information needed for the Evaluation Committee to evaluate Metro's proposal in the Cost of Services category. The points allocated by each member to Metro are within a reasonable range and do not appear and are not considered to be an aberration. Even assuming that the Evaluation Committee should not have calculated the annual all-inclusive total cost for Metro using Metro's hourly rate, Metro was not considered for award of the RFP. Furthermore, Metro was the only proposer for whom the Evaluation Committee performed this calculation. Because of the action by the Evaluation Committee, no benefit was shown to inure to Intervenor and no detriment was shown to inure to Petitioner. Additionally, Petitioner finds fault as to another proposer, Chi-Ada Corporation (Chi-Ada), in the scoring by the Evaluation Committee in the Cost of Services category. At the May 3, 2001, meeting of the Evaluation Committee, its members were informed by the technical staff of Respondent's Purchasing Department that Chi-Ada had not submitted proof of licensure required by the RFP but that Chi- Ada was providing proof of licensure by mail. The RFP permitted additional information to be provided, upon request by Respondent, after submission of proposals. The Evaluation Committee proceeded to evaluate Chi-Ada's proposal. Chi-Ada's annual all-inclusive total cost for the security guard services for Group 1 is $510,963.60. Each member of the Evaluation Committee utilized this amount in allocating the points for the Cost of Services category. The points allocated to Chi-Ada for the Cost of Services category by each member of the Evaluation Committee are as follows: two members allocated 25 points each, two members allocated 20 points each, and one member allocated 21 points. Chi-Ada received an average of 21.2 points. Chi-Ada's points for the Cost of Services category is 21.2. Subsequently, Chi-Ada was found to be non-responsive for the failure to provide the proof of licensure. Chi-Ada had failed to provide a copy of its Florida's security guard services license, as required by Subsection 3.7 of the RFP, within three days of the request from Respondent's Purchasing Department. The action of the Evaluation Committee proceeding to evaluate Chi-Ada's proposal was reasonable, rational, and fair. Their action is not shown to be and is not considered materially affecting or significantly impacting the scoring or the process of the RFP. The points allocated by each member to Chi-Ada are within a reasonable range and do not appear and are not considered to be an aberration. After scoring of the proposals, the Evaluation Committee voted to recommended that Intervenor be awarded the RFP as the responsive responsible bidder, having received the highest total number of points in the scoring. On May 23, 2001, the Evaluation Committee met again to reconsider the points allocated to Petitioner regarding the M/WBE Participation category. The Evaluation Committee assigned additional points to Petitioner in the M/WBE Participation category for workplace diversity. On May 24, 2001, the proposed recommendation and tabulation were posted. The proposed recommendation is to award the RFP to Intervenor. The scoring tabulation, indicating the total points out of 100 points allocated to each proposer for all categories is a follows: Chi-Ada--55.2 points; Command Security Corporation--58.8 points; 50 State Security Services, Inc.--54.2 points; Gabriel Security of Florida, Inc.--42.6 points; Kemp Security & Investigative Services--64 points; Metro Security Services--55 points; Petitioner--69.2 points; Pronto Security, Inc.--44 points; and Intervenor--76.6 points. At first, Petitioner filed a notice of protest with Respondent. Subsequently, Petitioner also filed a formal written protest. Chi-Ada filed a combined notice of protest and formal written protest with Respondent. Respondent's Bid Protest Committee, in accordance with statute and rule, attempted to resolve the protests by mutual agreement. Through separate noticed public hearings, the Bid Protest Committee considered the protests. As to Chi-Ada, the Bid Protest Committee rejected the protest. The Bid Protest Committee determined that Chi-Ada failed to satisfy the eligibility criteria of Subsection 3.7 of the RFP by failing to provide proof of its licensure and was, therefore, a non-responsive bidder. As to Petitioner, the Bid Protest Committee rejected the protest and upheld the recommendation to award the RFP to Intervenor. Petitioner timely requested the referral of its protest to the Division of Administrative Hearings. Neither Petitioner's nor Intervenor's standing is in dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order awarding to Security Services of America, L.L.C. the contract under Request for Proposals (RFP) for Security Guard Services, RFP 21-203T. DONE AND ENTERED this 6th day of November, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 6th day of November, 2001.
Findings Of Fact The facts in this case were undisputed by the individuals having personal knowledge of the incidents and may be summarized in narrative form. Three young road guard inspectors including Respondent Aaron Alderson, occupied Inspection Station 9A on I-75 during the early morning hours on September 30, 1977. Little traffic had passed during the preceding 2 or 3 hours and idleness and exuberant youth brought forth ideas for diversion. Earlier in the evening salt had been sprinkled on Alderson. Around 4:00 a.m. Perry, one of the men in Station 9A, removed his belt and gun before going to the toilet. While he was in the toilet Alderson, as a practical joke, removed the cylinder from Perry's revolver and replaced the revolver in its holster. When Perry came out and put on his belt and gun, Alderson immediately commented to Perry that he would have a hard time firing his gun. Perry then looked at his gun, saw the cylinder missing and he and Alderson replaced the cylinder thus restoring the weapon to operation. Shortly thereafter Alderson and Perry began friendly bumping into each other and then decided to go outside where there was more room for exercise. They removed their belts and guns, leaving them in the station, and went to the side of the building where they began friendly tussling. During this time the other occupant of Station 9A, Hudson, remained in front of the station keeping a lookout for trucks. When a truck entered the ramp, the horseplay was stopped until after the truck had departed. The occupant of Station 9B across the highway from Station 9A was also out in front of his station and could see Alderson and Perry in the lights from Station 9A. After 10 or 15 minutes of horseplay consisting of friendly grappling and tussling, Anderson and Perry had expended sufficient energy to return to the more sedentary chore of waiting for approaching trucks. At all times involved in these incidents, both parties were in uniform, the sun lacked several hours of announcing the approach of day, little, if any, traffic passed Station 9A on the I-75 and the uniforms of Alderson and Perry were neither dirtied nor mussed. As a result of the above incidents, Perry was suspended from duty without pay for 5 days and Alderson was suspended from duty without pay for 10 days. Apparently no appeal was taken by Perry but Alderson's suspension cost him his biweekly salary of $292.63, less withholdings. In 1976, legislation was passed authorizing the arming of road guard inspectors and they were first armed, after completing Police Standards Training, in late 1976. At the time they were authorized to carry arms, they were issued a copy of the Firearms and Ammunition section from the Department of Agriculture's Policy Manual and told to become familiar with it. A copy of this instruction was admitted as Exhibit 1. Respondent acknowledged that he was given a copy of the instruction offered as Exhibit 1 at the time he was authorized to carry a weapon but denies that he read paragraph E thereof with full understanding. Alderson appears to have been employed in 1975, as a road guard inspector and received his first employee performance review dated 11/05/75. Two additional evaluations dated 6/14/76 and 4/10/77, were admitted into evidence with the initial evaluation as a composite exhibit 5. It is noted that Respondent's performance scores, prepared by his supervisor, have increased with each subsequent evaluation. In his latest evaluation Alderson was rated as exceptional and one of the most knowledgeable inspectors in the division. During Alderson's testimony he was open, forthright and responded to all inquiries with composure and decorum. He freely admitted the facts as noted above and acknowledged he now realizes the seriousness of tampering with a weapon as a practical joke. His primary concern with this no appeal was his conviction that the punishment was not commensurate with the offenses and that he had not been given an opportunity to state his side of the case to the superior who actually recommended the punishment before it was approved and awarded. The road guard inspector, who inadvertently disclosed the incident to Roger Pittman, the assistant chief, Road Guard Bureau, who appears to have been the prime mover in the punishment awarded, testified that he felt so bad about the incident he thought about resigning from the road guard. The demeanor of all witnesses leads the undersigned to conclude that the manner in which this incident was handled was detrimental to the morale of the inspectors in the road guard bureau.
Findings Of Fact As Needed Temps, Inc., Respondent, provides temporary employees to various businesses. Respondent is not licensed under Chapter 493. Respondent Mary E. Carter is president of Respondent. She is also the director of operations for SOS Security, Inc., whose principal place of business is at the same location as that of Respondent. SOS Security, Inc. holds a Class "B" license. In August, 1987, David Christy, who was a drywall laborer, was working temporary jobs that Respondent had found for him. On August 8 or 9, 1988, Respondent assigned him to SOS Security, Inc., which placed Mr. Christy as a security guard at a local bicycle racetrack. While working as a security guard, Mr. Christy wore the guard uniform of SOS Security, Inc. Mr. Christy was not a licensed security guard. SOS Security, Inc., which billed its customer for the security service, paid Respondent for Mr. Christy's services, and Respondent paid Mr. Christy. At least one other individual entered into a similar arrangement with Respondent and SOS Security, Inc. Willy Dorsey, whose security guard license had expired in 1986, was paid by Respondent and SOS Security, Inc. at different times for security work that he performed during an unspecified year. These incidents were not isolated. Respondent invoiced SOS Security, Inc. a total of over $13,000 in three invoices from March 20, 1987, through May 8, 1987, for "providing guard service."
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 30th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1402 1-2. Rejected as not finding of fact. 3-10. Rejected as recitation of evidence and not findings of fact. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Mary E. Carter President As Needed Temps, Inc. 6239 Edgewater Drive Suite N-5 Orlando, Florida 32810 Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32399-0250 =================================================================
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
The Issue The issue in this case is whether Respondent is guilty of the commission of an act of violence or the use of force on any person except in the lawful protection of oneself or another from physical harm.
Findings Of Fact Respondent holds the following licenses: Class "D" Security Officer, Class "G" Statewide Firearm License, and Class "MB" Security Agency Manager. He has held the Class "D" and "G" licenses since September 22, 1992. He has held the Class "MB" license since January 22, 1993. By an Emergency Order of Suspension entered March 4, 1993, Petitioner suspended all three licenses held by Respondent. The suspension was based on Respondent's arrest on February 26, 1993, for aggravated assault with a deadly weapon upon Kimo Little, such act not being in defense of self or another. Respondent is employed by Castlewatch Security Company, where he has worked for one year and three months. For about one and one-half years, Respondent has been negotiating with the current owner of the company for the purchase of the company. Respondent has an associates degree in business from Penn State University. He has been employed in the security business, in and outside Florida, for a little more than six years. In the course of performing his security guard work, Respondent regularly uses a Citizens Band radio in order to maintain contact with security guards in the field, when Respondent is not in the field, or with the main office, when Respondent is in the field. Security guards with other companies also use the CB radio in this fashion, and frequently conversations among security guards take place during the evening hours. On the evening of February 25, 1993, Respondent was on- duty, alone, at Roger Dean Chevrolet. At about 10:30 pm, he witnessed a bad car accident, which left him in an agitated state due to the seriousness of the injuries that he observed. About one-half to one hour later, Respondent was on the CB radio when he overheard Kimo Little and another man engaged in a hostile conversation involving swearing and cutting off the conversations of other security guards. Respondent intervened, advising the main perpetrator, Mr. Little, to discontinue the conversation, or at least the swearing. The conversation between Respondent and Mr. Little became heated. Eventually, they agreed to settle their differences 1/ by fisticuffs at the parking lot of a closed McDonald's. Respondent had not previously arranged fights by way of CB radio. However, on at least two or three occasions, Mr. Little has detected differences of opinion between him and other users of the CB radio and determined the differences to be of such gravity as to require their settlement through combat. While still on the radio with Respondent, Mr. Little stated that he intended to "kick [Respondent's] ass." Mr. Little also explicitly informed Respondent that the fight was to be a "fair fight" without guns. Mr. Little beckoned a friend, Paul LeClair, to drive Mr. Little to the McDonald's for the fight. It is unclear why Respondent went to meet Mr. Little except to fight. At the time, Mr. Little neither knew Respondent's identity or where he worked. When Respondent was relieved at about 11:30 pm, he drove his utility vehicle over to the dimly lit, empty parking lot of the McDonald's. After a quick tour of the parking area, Respondent saw no one and was driving toward the exit when Messrs. Little and LeClair appeared in the latter's truck. In a clearly irritated tone, Mr. Little advised Respondent by radio, "I see you. I'm going to hunt you down like a dog." He then jumped out of Mr. LeClair's vehicle and ran toward Respondent's vehicle, waving his arms in an angry, beckoning fashion. Although Respondent could have left the parking lot, he instead turned his vehicle around and drove toward Mr. Little. As he approached Mr. Little, he got a good view of his adversary. Mr. Little is six feet tall and a menacing 270 pounds. Somewhat smaller than Mr. Little, Respondent quickly surveyed Mr. Little's superior size and enthusiasm, as evidenced by his shouting to the approaching Respondent: "I'm going to tear your fucking head off." Respondent also noted Mr. Little's potential ally, Mr. LeClair, who was standing beside his truck. Respondent quickly decided not to fight Mr. Little. Instead, Respondent drew the 9 mm handgun that he keeps on hand for security work, aimed it at Mr. Little, and warned him, "Come any closer and I'll blow you away." He added for emphasis, "Back off, motherfucker." The distance between the two gentlemen was about three meters. Undaunted by the weapon, Mr. Little implored Respondent, "Just get out of the truck and put the gun away. I'll whip your ass like a man." However, Respondent chose instead to leave the parking area. As he drove away, he called the police and informed them of the situation. Shortly thereafter, the Cape Coral police arrested Respondent, after determining that he had drawn his weapon but had not seen a weapon on Mr. Little. There is no evidence that any criminal case has been initiated or prosecuted.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State, Division of Licensing, enter a final order dismissing the Emergency Order of Suspension. ENTERED on April 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1993.
The Issue The issue presented is whether Respondents were negligent by failing to provide proper supervision and control of two security guard employees, as alleged in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken against them, if any.
Findings Of Fact At all times material hereto, Respondent U.S. Security has held a Class "A" Private Investigative Agency License No. A00-01448; a Class "B" Watchman, Guard or Patrol Agency License No. B00-01042; and a Class "DS" Guard School License No. DS89-00077. At all times material hereto, Respondent Bahram Sedaghat has held a Class "C" Private Investigator License No. C87-00645, a Class "DI" Guard Instructor License No. DI89- 00275, a Class "G" Statewide Gun Permit No. G88-00869, and a Class "M" Manager License No. M90-00046. At all times material hereto, Respondent Bahram Sedaghat has been the Vice-President of Respondent U.S. Security, and Juan Cabrera and Octavio Valdez were employees of Respondent U.S. Security. At all times material hereto, Respondent U.S. Security has provided supervision of its security guards (including Cabrera and Valdez) through patrol supervisors, assistant area managers, and area managers. Pursuant to that three-tier level of supervision, every guard post was checked by a supervisor almost every night as part of Respondent U.S. Security's regular supervisory procedures. For several years, Respondent U.S. Security had in effect a contract with Flamingo Plaza, an industrial complex in Hialeah, Florida, to provide unarmed guard services to Flamingo Plaza. That contract was in effect on October 23, 1989. When Cabrera was first employed by Respondent U.S. Security, he was assigned to perform unarmed guard services at a construction site for the Carnival Cruise Lines building. On his first day at that post, construction workers noticed that he was armed. When Brian Pierce, the area manager, came to the post approximately one hour later, the construction workers advised Pierce that Cabrera was armed. Pierce immediately reprimanded Cabrera, reminding Cabrera that the post was an unarmed guard post and that Cabrera was prohibited from being armed while on duty at that post. He made Cabrera lock his gun in his car. Thereafter, no one saw Cabrera with a firearm at that unarmed post. Cabrera was subsequently reassigned to perform guard services at the unarmed guard post located at Flamingo Plaza. On his first day at that assignment, James Cee, the property manager at Flamingo Plaza, saw Cabrera with a firearm while on duty and reported that to Brian Pierce. Pierce reprimanded Cabrera in front of Cee and instructed him not to return to the post with a firearm since it was an unarmed post. Thereafter, there were no further complaints regarding Cabrera carrying a firearm while at Flamingo Plaza although Cabrera continued his assignment at Flamingo Plaza for approximately three or four more months. After Pierce reprimanded Cabrera for appearing at Flamingo Plaza on his first day with a firearm, however, on one occasion Mark McCray, the assistant area manager, saw Cabrera at Flamingo Plaza wearing a jacket while on duty. Visible below the jacket was the bottom of a holster. Cabrera was specifically ordered by McCray not to wear a holster while on duty at an unarmed post. Cabrera was not armed on that occasion. There were no other reports that Cabrera wore a holster at Flamingo Plaza on any other occasion. On October 23, 1989, a shooting incident involving Cabrera took place at the Flamingo Plaza. Upon being notified of the incident Respondent U.S. Security immediately suspended Cabrera and fired him on the following day. Criminal charges were filed against Cabrera based on that shooting incident, and those charges remained pending at the time of the final hearing in this cause. Petitioner immediately conducted an investigation of the incident and of Respondent U.S. Security's procedures for supervision of its unarmed guard employees. At the conclusion of the investigation, Petitioner determined there were no violations of the statutes regulating the security guard industry and closed its file. Thereafter, Cabrera, while the criminal charges were pending against him, appeared on television and gave statements which directly contradicted the evidence obtained by Petitioner in its investigation. As a result of those statements made by Cabrera and pressure exerted by the news media, Petitioner reopened its investigation and subsequently issued the Administrative Complaint which is involved in this proceeding. Respondents were not aware that Juan Cabrera or Octavio Valdez had firearms in their possession while on duty on October 23, 1989, when their assigned duties did not require firearms. Further, there is no reason that Respondents should have known that Cabrera or Valdez had firearms in their possession on that occasion. It is standard procedure for Respondent U.S. Security's supervisors to provide all security guards with "post orders" prior to each guard beginning a new post assignment. Among other things, this document notifies the guard as to whether the post calls for armed or unarmed personnel. Respondent U.S. Security ensures that the guard reads and understands the post orders prior to beginning his shift. On October 23, 1989, Respondent U.S. Security had procedures set up for the hiring, training, and supervision of security guards, both armed and unarmed. Respondent U.S. Security had in place procedures for taking disciplinary action against employees. Those disciplinary guidelines included the exercise of judgment by the supervisory personnel involved. If an employee did something prohibited, the employee was specifically reprimanded and instructed not to engage in that conduct again. If the employee engaged in the same conduct again, he would be fired immediately for disobeying direct orders. Respondent U.S. Security did not have a specific policy directed at a guard appearing at an unarmed post with a firearm or with only a holster because such conduct simply did not occur. Respondent U.S. Security's procedures for supervision of security guards comply with or exceed the procedures utilized in the industry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty of the allegations contained in the Administrative Complaint filed against them and dismissing that Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1991. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4840 Petitioner's proposed findings of fact numbered 1 and 3-7 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2 and 10 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 8 and 9 have been rejected as being irrelevant to the issues involved in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed findings of fact numbered 1-12 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Henri C. Cawthon, Esquire Florida Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Norman S. Segall, Esquire Bentata Hoet & Associates and Zamora Segall Lacasa & Schere 3191 Coral Way Third Floor, Madison Circle Miami, Florida 33145 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue In this case, the Petitioner seeks to impose discipline against the Respondent's certificate to be employed as a correctional officer based upon the allegation that the Respondent has committed acts which evidence a failure to maintain the qualifications incumbent upon a correctional officer working in Florida. In particular, it is alleged that the Respondent committed acts which demonstrated a lack of good moral character.
Findings Of Fact Facts Deemed Admitted The Respondent was certified as a corrections officer by the Petitioner on or about August 16, 1985 and was issued Corrections Certificate No. 28-85- 502-02. The Respondent was employed as a sworn corrections officer with the Alachua County Department of Corrections from June 17, 1985 to August 8, 1991. The Respondent, on or about April 20, 1990, was found guilty by a jury for the crime of resisting arrest without violence, a misdemeanor. The court withheld adjudication and sentenced the Respondent to six months of probation. The Respondent, on or about July 8, 1991, entered a plea of nolo contendere to the criminal charges of resisting arrest without violence and battery, both misdemeanors. The court sentenced the Respondent to one year of probation and withheld adjudication. On or about August 6, 1991, the Respondent became involved in a dispute with members of his family at his residence. The Respondent had consumed one or more alcoholic beverages immediately prior to and/or during the above-referenced family dispute. The dispute turned into a verbal and physical disturbance involving the Respondent and members of his family. The police were called to the Respondent's residence due to the above- referenced disturbance. After the police arrived with regard to the above-referenced disturbance, the Respondent barricaded himself inside his residence by locking the doors. After barricading himself inside his residence, the Respondent armed himself with a knife. The Respondent threatened to kill the police officers at the scene of the above-referenced disturbance if the officers attempted to apprehend him. Other Facts The offense described in paragraph 3 to these facts is related to the allegations contained in paragraph 2.(a) to the Administrative Complaint. The offense described in paragraph 4 to these facts is related to the allegations contained in paragraph 2.(b) to the Administrative Complaint, with the exception that paragraph 2.(b) makes no mention that a battery was committed. The offense described in paragraph 4 to these facts was considered in the Circuit Court of Union County, Florida, Case No. 90-29-CF. In addition to the service of one year of probation, the Respondent was ordered to successfully complete Anger Management as instructed by the Respondent's probation officer. On August 2, 1989, at approximately 9:30 p.m., in Alachua, Florida, Officer Lisa Brown, in pursuing her duties as a sworn officer, stopped the Respondent for a traffic violation. The Respondent was stopped because he had run two stop signs in Alachua. The stop signs were run at Northeast 8th Avenue crossing over State Road 235 and at Northwest 8th Avenue at Main Street. Officer Brown is now Officer Lisa Brown Haefner. At times relevant, Officer Haefner was serving as a police officer with the City of Alachua. Officer Haefner made the traffic-violation stop on Northwest 8th Avenue, off of Main Street, in Alachua. When the traffic-violation stop was made, Officer Haefner was assisted by Sergeant Cindy Dennison of the City of Alachua. Sergeant Dennison and Officer Haefner were driving separate patrol units on that night. Both officers observed the Respondent run the stop signs. Officer Haefner and Sergeant Dennison did not know Respondent when the traffic stop was made. After the stop, Officer Haefner asked the Respondent to exit his vehicle. The Respondent exited the vehicle. At that time, Officer Haefner asked the Respondent for identification. The Respondent replied that he "had none". Officer Haefner asked the Respondent for his name. The Respondent stated that he "didn't have a name". When the Respondent was contacted about the traffic violations, Officer Haefner asked for his driver's license, and the Respondent told Officer Haefner that he did not have a driver's license. The Respondent was acting irrational and irritated in the presence of Sergeant Dennison and Officer Haefner. Officer Haefner detected an odor about Respondent's person which she believed to be cannabis. Officer Haefner determined to arrest the Respondent for resisting or obstructing arrest without violence based upon the Respondent's failure to give information concerning his identity and the belief that she had cause to arrest Respondent. After informing the Respondent that he was being arrested for resisting or obstructing arrest without violence, Officer Haefner and Sergeant Dennison attempted to place handcuffs on the Respondent. This was a normal procedure. The Respondent resisted the placement of the handcuffs by twisting and stiffening his body and leaving his arms in front of him, which obstructed the officers' ability to secure the Respondent's arms behind him, as they desired. Under the circumstances, Officer Haefner sought the assistance of Officer Clovis Watson, Jr. (later Sergeant Watson) and Officer VanHorn. The other officers who were summoned for assistance were employed by the City of Alachua Police Department. The Respondent was eventually handcuffed, placed in Officer Watson's patrol car, and taken to the police station. When at the police station, he continued to be irrational and irritated. At one point in the encounter between Officer Haefner, Sergeant Dennison, and the Respondent, the Respondent offered to obtain identification from the back seat of his vehicle. The officers declined that request in that the Respondent was acting irrational and irritated; and based upon a fear for her personal safety, Officer Haefner would not allow the Respondent to access his vehicle. Respondent's offer to obtain identification came about at the point in time at which Officer Haefner and Sergeant Dennison attempted to handcuff the Respondent. The nature of the Respondent's irrationality and irritability was manifested by his being "real vocal, not wanting to cooperate, agitated as far as being stopped" and asking the officers "why are you harassing me?". The Respondent manifested this attitude notwithstanding that Officer Haefner had told him that he was being stopped for a traffic violation. The Respondent also manifested his irritability by having an agitated appearance. Before the Respondent was arrested for resisting or obstructing arrest without violence, he had been told several times not to return to his vehicle; however, he continued to walk toward his vehicle. It is at that point that Officer Haefner and Sergeant Dennison physically grabbed the Respondent and tried to restrain and handcuff him. The Respondent's actions prohibited Officer Haefner and Sergeant Dennison from performing their law-enforcement duties in making the traffic- violation stop. The Respondent continued to struggle when the officers were attempting to place the handcuffs on him after Officer Watson arrived at the scene by swaying back and forth. In the course of that struggle, Sergeant Dennison fell to the ground and the Respondent and Officer Watson fell on top of her. As a consequence, Sergeant Dennison sustained a concussion. The Respondent held his hands close to his body as a means to restrict the ability of the officers to handcuff him. The Respondent shook back and forth and this caused the officers and the Respondent to fall, injuring Sergeant Dennison. While the officers were attempting to handcuff the Respondent, he did not strike out at the officers. The Respondent resisted, in part, because he did not wish to be taken to the jail where he worked. On May 5, 1990, the Respondent, together with his brother and a friend, went to Union County, Florida, to a nightclub. When they arrived they were confronted by a number of persons who were already at the club. A fight ensued and the Respondent's brother was injured. The Respondent then took his brother to Ramadan Hospital to have his brother treated for injuries sustained in the fight at the club. Ramadan Hospital was located in Lake Butler, Union County, Florida. Union County Sheriff Jerry Whitehead received a call on his beeper at around 1:00 to 1:30 a.m. on the morning in question. He called the Union County Jail and was told about the fight at the local nightclub. He was also told that all of the deputy sheriffs had been dispatched to the nightclub. In turn, Sheriff Whitehead got dressed and started toward Lake Butler. Ramadan Hospital is located between his home and the Union County Jail. About a mile from the hospital, Sheriff Whitehead received a call from the sheriff's office dispatcher indicating that there was a disturbance at the hospital. Sheriff Whitehead responded to that call. When Sheriff Whitehead entered the emergency room at the hospital, the Respondent, his brother and the friend were in the waiting area of the hospital. The Respondent was standing in the hallway at that time, cursing and saying that he had just contacted his supervisor, taken to mean supervisor at the Alachua Correctional Facility, and that the Respondent was "fixing to have some people come over and they were going to get the situation straight". Sheriff Whitehead identified himself to the Respondent and asked the Respondent what the problem was. The Respondent indicated that he had been involved in an incident at the local nightclub and that there had been a fight and his brother had been injured. The Respondent told Sheriff Whitehead that he was going to "take this thing into his own hands". The Respondent was also indicating "things" that he wanted to have done concerning the incident. Respondent was cursing and using foul language. Sheriff Whitehead told the Respondent that he had to calm down or leave the premises. Sheriff Whitehead repeated this remark a number of times. After a time Sheriff Whitehead went to a telephone in the hospital and called the sheriff's office dispatcher and asked that a deputy sheriff be sent. During the course of these circumstances, the Respondent was belligerent and had the smell of alcohol about his person. The Respondent was being very belligerent in telling the nurses something to the effect that he was going to "tear that place up if they didn't get this done." This related to the Respondent's concern that a doctor was not available to attend to his brother at the hospital. The disturbance which the Respondent was causing was primarily directed to the hospital staff. The Respondent continued his outbursts for several minutes. In the course of this event, the Respondent identified himself as a law enforcement officer. Sheriff Whitehead told the Respondent that he needed to calm down and to let the Union County Sheriff's Department take care of the situation. Finally, Sheriff Whitehead believed that he had lost control over the Respondent's conduct and told the Respondent that he was going to place the Respondent under arrest. The Respondent replied that "he did not need to be arrested, wasn't going to be arrested." Sheriff Whitehead then placed his arm on the Respondent's arm and the Respondent snatched his arm away from Sheriff Whitehead. At that point Sheriff Whitehead took the Respondent through a set of doors to exit the hospital emergency room. They struggled out onto a patio area and onto the asphalt parking lot and then onto a grassy area where Sheriff Whitehead took the Respondent down and held him until a deputy sheriff arrived to assist. Sheriff Whitehead told the Respondent that he was being arrested for breach of the peace, an offense which Sheriff Whitehead believed he had reasonable cause to arrest the Respondent for. After the Respondent had been subdued and handcuffs placed on him, the Respondent became cooperative and acted remorseful, again explaining to Sheriff Whitehead that he was a correctional officer and that he was afraid he was going to lose his job because of the incident. The Respondent was then taken by a deputy sheriff to be transported to the Union County jail. When Sheriff Whitehead was trying to talk to the Respondent, the Respondent would swing his arms and on several occasions made cursing remarks toward the nurses, which Sheriff Whitehead believed was because doctors were not available to attend the Respondent's brother at that time. On August 6, 1991, Officers Glen Hammond, Donald Rice and Price responded to an alleged domestic disturbance call at 305 N.E. Fifth Street in Alachua, Florida. Those officers were working for the City of Alachua Police Department when they made the response. The alleged domestic disturbance involved the Respondent, his mother, sister and brother. When the officers arrived at the scene the other family members told the officers that the Respondent had been involved in a physical altercation with them and had battered them. The Respondent's mother told Officer Hammond that the Respondent had been smoking crack cocaine prior to the arrival of the officers. The family members told the officers that the Respondent was located in a wooded area near the residence. The officers went to find the Respondent so they could talk to him concerning the complaint by his family. Officer Wallace located the Respondent and brought him back to the residence. While standing in front of the residence, the Respondent was arguing with his mother and using profanity. In addition, he yelled at Officer Hammond a few times to the effect that the Respondent wasn't going to be taken into custody. At that juncture there was no intention by the officers to arrest the Respondent. At this time Officer Hammond did not observe anything about the Respondent's demeanor to suggest that the Respondent had consumed alcoholic beverages. After a short period, the Respondent left the area adjacent to the residence and returned to the woods. The officers again went to find the Respondent so that they could discuss the complaint. While the officers were trying to locate the Respondent for the second time someone started yelling that the Respondent had returned to the residence and was inside the residence. The officers then returned to the residence. When Officer Hammond walked up to the front of the residence to an area adjacent to a porch on the front of the residence, the Respondent opened the door and stepped out holding a knife which appeared to be a steak knife. The Respondent told Officer Hammond that Officer Hammond was not going to arrest him and that if Officer Hammond tried to come on the porch, the Respondent would kill Officer Hammond. The Respondent also mentioned the possibility that he would do harm to himself. While standing on the porch, the Respondent was not acting in a rational manner. After the Respondent threatened to kill Officer Hammond, the officer backed away from the residence and called for assistance from other law enforcement officers. Officer Hammond did this being fearful for his safety. A second brother of the Respondent arrived at the residence when the Respondent went in the house from the front porch. The second brother went inside to try and talk to the Respondent to defuse the situation. The second brother managed to have the Respondent come out of the house, at which point, the Respondent was charged with disorderly intoxication. At about the time the Respondent was arrested, Officer Hammond was close enough to the Respondent to notice that the Respondent had an odor of alcohol about the Respondent's person. When Office Wallace found the Respondent in the woods on the first occasion, the Respondent did not resist the officer in any manner and agreed to go back to the residence with the officer. When the Respondent returned to the residence on the first occasion, he stated that he would kill somebody first before he would go to jail. It is at that point that the Respondent broke from the scene and ran into the woods. While on the porch, the Respondent stated that he would kill any officer or take his own life, and that the Respondent was not going to go to jail. When the Respondent was first approached in the woods, Officer Wallace did not have grounds to arrest the Respondent. When the Respondent came back from the woods the first time, Officer Hammond was trying to interview the Respondent concerning the circumstances between the Respondent and his family that had caused the officers to be summoned. When the Respondent returned to the woods for the second time, the officers did not have cause to arrest the Respondent. When the Respondent told the officers that he was not going to be arrested or go to jail, upon the conversation that the officers held with the Respondent after he returned from the woods on the first occasion, the Respondent had not been told that he was being arrested. When the Respondent went back in the house from the front porch, he locked the doors to the residence and still had possession of the steak knife. The residence in question was reported to the officers as being the Respondent's mother's residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Certificate No. 28-85-402-02 be revoked. DONE AND ENTERED this 31st day of October, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-5306 The following discussion is given concerning the proposed findings of fact by Petitioner. Petitioner's Facts: Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Paragraphs 5 through 30 are subordinate to facts found. Paragraphs 31 and 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes a conclusion of law. Paragraph 36 is not necessary to the resolution of the dispute. Paragraphs 37 through the first sentence in Paragraph 42 are subordinate to facts found. The second sentence in Paragraph 42 is not necessary to the resolution of the dispute. Paragraphs 43 through 50 are subordinate to facts found. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302-1489 Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, FL 32605 A. Leon Lowry, II, Director Department of Law Enforcement Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302-1489
