The Issue The issues in this case are whether the Respondent has violated Sections 491.009(2)(h) and (u), Florida Statutes, by failing to timely comply with a prior Board Order and, if so, the determination of an appropriate penalty.
Findings Of Fact The Respondent, David Pesek, is a licensed Marriage and Family Therapist in the State of Florida, and has been so licensed at all times relevant and material to this proceeding. His license number is NT 192. On September 7, 1988, the Petitioner filed an earlier Administrative Complaint against the Respondent in DPR Case No. 0055334. On February 14, 1990, the Respondent signed a stipulation providing for a stipulated disposition of DPR Case No. 0055334. The Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling approved the stipulated disposition at a meeting on April 27, 1990, and on Nay 23, 1990, a Final Order was rendered in DPR Case No. 0055334. The Final Order in DPR Case No. 0055334 included the following pertinent language: Respondent shall pay an administrative fine of one thousand dollars ($1,000) to the Executive Director of the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling within sixty (60) days of the filing of the Final Order herein. Respondent shall be placed on probation for one (1) year, with the condition of probation that Respondent's billing records and documents be reviewed by a consulting practitioner. The one (1) year probation shall begin to run when consulting practitioner is approved. Such consultant shall submit a written report to the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling six (6) months following the rendition of the Final Order. The consulting practitioner shall be selected by Respondent, subject to approval of the Board. Pursuant to the terms of the Final Order in DPR Case No. 0055334, the deadline for paying the administrative fine was July 23, 1990. On November 27, 1990, the Department of Professional Regulation sent a letter to the Respondent reminding him that he had not complied with the Final Order in DPR Case No. 0055334. By letter dated December 6, 1990, and received on December 13, 1990, the Respondent transmitted his check in the amount of one thousand dollars in payment of the fine. 2/ The fine was paid approximately four and a half months after it was due. By letter dated January 23, 1991, the Respondent advised the Chairman of the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling of the name of a consulting practitioner who was willing to perform the review and reporting functions required by the Final Order in DPR Case No. 0055334. The letter of January 23, 1991, was two months after the deadline for the consultant's report. By letter dated April 1, 1991, the Respondent was advised by staff of the Department of Professional Regulation that his choice of a consulting practitioner had been approved, that the consultant's report would be due six months from the date of the letter, and that the Respondent's one-year probation period would begin as of the date of the letter. /3
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling enter a Final Order in this case to the following effect: Concluding that the Respondent did not violate Section 491.009(2)(h), Florida Statutes, and dismissing Count I of the Administrative Complaint. Concluding that the Respondent did violate Section 491.009(2)(u), Florida Statutes, and finding him guilty of the violation charged in Count II of the Administrative Complaint. Imposing a penalty consisting of: (1) an administra- tive fine in the amount of $500.00 (Five Hundred Dollars), (2) issuance of a public reprimand, and (3) a six-month period of probation, which period shall begin on the first day following the Respondent's current probation period and shall be subject to such reasonable conditions of probation as may seem appropriate to the Board. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 7th day of January, 1992. MICHAEL M. PARRISH, 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 7th day of January, 1992.
Findings Of Fact On February 18, 1992, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, 3-12, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Challenged Rule provides that "Possession of any other contraband" is an offense for which discipline may be imposed on inmates. The Challenged Rule also provides that the maximum penalty for this offense is 15 days of disciplinary confinement and loss of 30 days gain time. The Challenged Rule does not include a definition of "contraband." Rule 33-22.012, 3-1 to 3-11, Florida Administrative Code, designates the possession of certain specific items of contraband to be a ground for discipline and provides the maximum penalty therefore. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: . . . constitutes an invalid rule where the rule has exceeded its grant of authority as contain in 944.47, Florida Statutes (1991), in that the rule seeks to define contraband to be "any other contraband" not defined as such by enabling legislation contrary to Section 120.52(8)(b), Florida Statutes (1991). As matter of fact, the rule . . . goes beyond the statutory definition of contraband with the inclusive phrase "any other contraband" without more. . . . The Petitioner also alleged that the Challenged Rule is invalid pursuant to Section 120.52(8)(c), Florida Statutes, for essentially the same reason. The Petitioner further alleged that the Challenged Rule is vague and vest unbridled discretion in the Respondent because of the failure to define "any other contraband" in the Challenged Rule. Finally, the Petitioner alleged that the Challenged Rule is arbitrary and capricious because there is "no logical basis in fact to condemn legally lawful material as contraband with the phrase 'any other'. Rule 33-3.006, Florida Administrative Code, provides a definition of the term "contraband." There is, therefore, no reason to further define the term "contraband" used in the Challenged Rule. The reference to "any other" is merely an indication that the penalty provided for in the Challenged Rule is for the possession of any contraband (as defined elsewhere) other than contraband specifically listed in Rule 33-22.012, 3-1 through 3-11.
The Issue Whether Respondent had violated Section 479.07(1), Florida statutes, in that no permits were secured for subject signs for the years 1972 through 1975.
Findings Of Fact No permits were applied for or secured.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the. administrative complaint, Respondent, Michael James Hanly, was a licensed registered nurse, license no. RN 78035-2. On or about November 18, 1987, the Board of Nursing entered a final order regarding disciplinary action against this Respondent. The final order found the Respondent guilty of improper conduct and specified the following penalties: The licensee shall pay an administrative fine of $500.00 within 6 months. The licensee is hereby placed on PROBATION for a period of two years, subject to the following terms and conditions: The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing. The licensee shall submit written reports to the Board, which contain the licensee's name, license number, current address, current employer's name, address and telephone number, and a statement by the licensee describing his nursing employment and performance These reports shall be submitted quarterly, as scheduled by the Board probation section. The licensee shall enroll in and successfully complete, in addition to normally required continuing education courses, courses in the following subject areas: medical ethical considerations and legal aspects of nursing within six (6) months from the filing of this Order. * * * While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by his employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by-the Board probation section. If employed otherwise than as a nurse, the licensee shall report the position, employer and place of employment to the Board section on the scheduled quarterly dates. If not employed, the licensee shall so notify the Board probation section on the scheduled quarterly dates. Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation. Subsequent to the entry of the final order, the Respondent did not submit reports, did not complete the continuing education, and did not pay the administrative fine. On June 10, 1988, the Department wrote to the Respondent to notify him that the terms of the final order had not been met. This letter was received by the Respondent on June 14, 1988. On June 29, 1988, the Department again wrote to the Respondent to advise him that he was delinquent and in violation of the final order. This letter was received by the Respondent on July 12, 1988. Upon receipt of the correspondence described in paragraph 3, Respondent replied to the Department by stating that the matters addressed in the final order were on appeal to the district court of appeal. The Respondent did not pay the administrative fine nor seek additional time within which to comply with the remaining terms of the final order. Finally, the Department wrote to Respondent on July 22, 1988, acknowledged that the final order had been appealed, but informed Respondent that he was required to comply with the final order unless a stay were entered by the appellate court. Respondent did not obtain a stay from the appellate court and, as of the date of the hearing, had not complied with the terms of the final order entered November 18, 1987.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Nursing enter a final order which finds Respondent guilty of the violation alleged in the administrative complaint, imposes an administrative fine in the amount of $250, and lengthens the period of Respondent's probation to four years. DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida. Hearings Hearings JOYOUS D. PARRISH Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative this 5th day of July, 1989. APPENDIX TO THE RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. With regard to paragraph 3, it is accepted that the Respondent filed an appeal which was assigned case no. 88- 1069; whether that appeal was timely or complied with the provisions of Section 120.68, Florida Statutes, is unknown and not a part of this record. It is accepted that the parties, for purposes of the hearing, believed the appeal to be proper. Paragraphs 4 through 11 are accepted. The Respondent did not submit proposed findings of fact. An ex parte communication was submitted on June 19, 1989, which is rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Michael A. Mone' Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 M. James Hanly, R.N. Post Office Box 1472 Boynton Beach, Florida 33425 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729
The Issue Whether Respondent had violated Section 479.07(1), Florida statutes, in that no permits were secured for subject sign for the years 1974 and 1975.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been licensed as a restricted barber and operating under the name of Miracles in Motion, located in Tampa, Florida. On May 9, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006030590 in the amount of $400. The fine, due to be paid by July 9, has not been paid. On October 13, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006058259 in the amount of $250. The fine, due to be paid by December 24, has not been paid. Also on October 13, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006058271 in the amount of $250. The fine, due to be paid by December 24, has not been paid. On October 24, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006063364 in the amount of $400. The fine, due to be paid by December 24, has not been paid. Respondent did not dispute the facts contained in these four Citations. Under the terms of the Citations, they, therefore, automatically became final orders 30 days after they were issued. Since Respondent has not paid those fines, he fails to be in compliance with four final orders of the Department. The total amount of fines not paid by Respondent pursuant to the four Citations involved in this proceeding is $1,300.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent is not guilty of violating Section 476.204(1)(i), Florida Statutes, and dismissing the Amended Administrative Complaint filed against him. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2009. COPIES FURNISHED: Robyn Barineau, Executive Director Barbers' Board Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Philip F. Monte, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elvis O'Neil Crooks 7117 Wrenwood Circle Tampa, Florida 33617
The Issue Whether Respondent had violated Section 479.07(1), Florida Statutes, in that no permits were secured for subject signs for the years 1973 and 1974.
Findings Of Fact 18. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 25, 2008, and the Amended Order of Penalty Assessment issued on October 31, 2008, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-206-D5, and being otherwise fully advised in the premises, hereby finds that: 1. On June 25, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-206-D5 to REDCO CONSTRUCTION, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein REDCO CONSTRUCTION, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop- Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On June 25, 2008, the Stop- Work Order and Order of Penalty Assessment was served by personal service on REDCO CONSTRUCTION, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. REDCO CONSTRUCTION, INC. failed to answer the Stop- Work Order and Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On October 31, 2008, the Department issued an Amended Order of Penalty Assessment in Case No. 08-206-D5 to REDCO CONSTRUCTION, INC. The Amended Order of Penalty Assessment assessed a total penalty of $1,326,7 B .10 against REDCO CONSTRUCTION, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein REDCO CONSTRUCTION, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 5. On December 17, 2008, the Amended Order of Penalty Assessment was served on REDCO CONSTRUCTION, INC. by personal service. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 6. On January 7, 2009, REDCO CONSTRUCTION, INC. served a petition for hearing on the Department. The petition for hearing was forwarded to the Division of Administrative Hearings on January 22, 2009 and was assigned Division of Administrative Hearings Case No. 09- 0362. A final hearing on the matter was scheduled for March 26, 2009. 7. On February 16, 2009, the Department served its first written discovery request on REDCO CONSTRUCTION, INC. Responses or objections to the discovery were required to be served on the Department within thirty (30) days. 8. On February 24, 2009, the Administrative Law Judge issued an Order Granting Leave to Withdraw, permitting counsel for REDCO CONSTRUCTION, INC. to withdraw from representation in this matter. On March 2, 2009, Anton Rettenwander filed a Notice of Appearance Pro Se, indicating that he, as president of REDCO CONSTRUCTION, INC., would represent REDCO CONSTRUCTION, INC. in this matter. 9. On March 6, 2009, the Administrative Law Judge issued an Order Granting Extension of Time, allowing REDCO CONSTRUCTION, INC. until April 2, 2009, to respond to Department’s discovery. 1 0. On March 9, 2009, the Administrative Law Judge issued an Order Granting Continuance and Re-Scheduling Hearing, rescheduling the hearing on this matter for May 7, 2009. 11. REDCO CONSTRUCTION, INC. failed to respond to discovery within thirty days. On April 7, 2009, the Department filed a Motion to Compel Discovery. 12. On April 8, 2009, in response to the Department’s Motion to Compel Discovery, the Administrative Law Judge issued an Order Directing Response, ordering REDCO CONSTRUCTION, INC., to file a written response to Petitioner’s Motion to Compel no later than April 16, 2009. 13. REDCO CONSTRUCTION, INC. failed to respond to discovery by April 16, 2009. On April 21, 2009, the Department filed a Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to S. 120.57(i), Florida Statutes. — 14. On April 21, 2009, the Administrative Law Judge issued an Order Directing Response, directing REDCO CONSTRUCTION, INC. to file a written response to the Department’s Motion to Deem Matters Admitted and to Relinquish Jurisdiction Pursuant to S. 120.57(i), Florida Statutes no later than April 28, 2009. Failure to comply with the Order Directing Response would result in the Administrative Law Judge issuing an order granting the relief requested by the Department. 15. On April 30, 2009, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File, deeming the facts elicited by the unanswered admissions contained in — the discovery admitted and the admissions contained therein conclusively established; and relinquishing jurisdiction to the Department for final agency action. A copy of the Order Granting Motion to Deem Matters Admitted is attached hereto as “Exhibit C” and incorporated herein by reference. 16. | On May 5, 2009, the Department mailed a letter to REDCO CONSTRUCTION, INC., informing REDCO CONSTRUCTION, INC. that it would be granted an informal proceeding if a request for such was received by the Department within twenty-one (21) days. A copy of the letter mailed on May 5, 2009, is attached hereto as “Exhibit Db” and incorporated herein by reference. 17. REDCO CONSTRUCTION, INC. failed to submit a written petition for an informal proceeding.
The Issue Whether Respondent committed the violations alleged in Administrative Complaint, as amended? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since April 30, 1982, certified by the Commission as a law enforcement officer. He holds certificate number 08-82-002- 01. Respondent is now, and has been since early 1982, employed by the Florida Highway Patrol (hereinafter referred to as the "FHP"). He currently holds the rank of sergeant, a rank he has held since 1986, with the exception of a brief period of time in 1990 when he served as a lieutenant. As a sergeant, Respondent is responsible, on a regular basis, for the direct supervision of eight troopers. There are occasions, however, when as many as 40 troopers are under his supervision. During the time that he has been with the FHP, Respondent has received numerous commendations and his overall work performance has been rated as either satisfactory or above. Only twice during the period of his employment has he been disciplined- - in 1983, for the negligent operation of his FHP vehicle, for which he received a written reprimand, and, more recently, for the incidents which gave rise to the issuance of the instant Amended Administrative Complaint. These incidents all occurred during the time Respondent held the rank of lieutenant. Respondent was promoted to the rank of lieutenant and assigned to the investigative section of the FHP's Troop "E" in Miami on or about February 1, 1990. His duties included working out of uniform (in civilian clothes) investigating driver's license fraud. Among the other investigative lieutenants assigned to Troop "E" with whom Respondent worked were Lieutenants Jimmy Hobbie, Paul Sharpe and Kenneth Glass. Respondent shared an office with Lieutenant Hobbie. They each had their own desk. Lieutenants Sharpe and Glass occupied other nearby offices. Respondent enjoyed a congenial, professional relationship with his fellow investigative lieutenants. At no time did he ever have an exchange of angry or threatening words with them. On at least three separate occasions between February 19, 1990 and April 15, 1990, while in his office and in the presence of Lieutenants Hobbie and Sharpe, with whom, at the time, he was engaged in casual, light conversation injected with attempts at humor, Respondent removed his .38 caliber FHP-issued service revolver from his holster, placed it near the side of his head, pulled the hammer partially back, and, without firing any shots, returned the revolver to his holster. On none of these occasions did Respondent intend to harm or threaten anyone. He was simply trying to be funny. Neither Hobbie nor Sharpe, however, were amused by Respondent's careless and potentially dangerous display of his firearm. 1/ To the contrary, they were troubled by Respondent's actions, but they did not express their concerns to Respondent. On March 30, 1990, Respondent displayed a firearm in arresting an individual named Mark Barken for driver's license fraud. Prior to locating and arresting Barken, Respondent had been told by Barken's brother that Barken was a heroin addict and that Barken had recently threatened the brother with a shotgun and told the brother that he was going to kill him and his wife. Based upon the information he had been provided by the brother, Respondent considered Barken to be an unstable, dangerous and violent individual. Therefore, when he received a tip that Barken was at a drug treatment and rehabilitation facility in Perrine, he asked Lieutenant Hobbie to accompany him to the facility to assist in arresting Barken. Hobbie agreed to provide such backup support. Respondent and Lieutenant Hobbie drove to Perrine and waited together outside the facility for Barken to leave. After a while, Respondent left the surveillance area for brief moment. When he returned, Hobbie advised him that Barken, or at least someone who looked like Barken, had just left the facility. Respondent thereupon got into his FHP vehicle and drove off in the direction Hobbie had told him Barken was headed. Hobbie remained behind in the surveillance area. Shortly thereafter Respondent spotted Barken, who was with a companion. As Respondent approached the two, they ran across the street into a parking lot. Respondent followed them. As he pulled into the lot, he identified himself as a law enforcement officer 2/ and ordered Barken and his companion to stop, turn around and face him with their hands up. The pair stopped, but they did not comply with Respondent's other directives, even after these directives had been given several times. Believing that it would be prudent to do so, Respondent took a shotgun with him as he exited the vehicle and initially held it in a port-arms position in an effort to gain control of the situation. Ultimately, Respondent did gain control of the situation. When Lieutenant Hobbie arrived on the scene, Barken and his companion were laying face down on the pavement and Respondent was pointing a shotgun in their direction. 3/ Following Hobbie's arrival, Respondent placed the shotgun back in his vehicle and Barken and his companion were taken into custody. On or sometime between April 16, 1990, and April 20, 1990, while seated at his desk in the office he shared with Lieutenant Hobbie, Respondent jokingly pointed his revolver out the open doorway of the office and in the direction of a reception area. As he did so, he commented to Hobbie, who was in the office with him, "Wonder what he would do if he would, you know, look up and see me pointing this gun at him." From where he was situated, Hobbie was unable to see the person to whom Respondent was referring. After making this comment, Respondent put the gun back in his holster. At around lunchtime, on or sometime between April 16, 1990, and April 20, 1990, Respondent walked into Lieutenant Sharpe's office and the two began to engage in a friendly conversation. Their discussion centered upon their plans for lunch. During the conversation, Respondent was standing immediately in front of the desk at which Sharpe was seated. At some point in their discussion, Respondent decided that he needed to tuck his shirt in his pants. Before loosening his pants, he unholstered his service revolver and laid the revolver on Sharpe's desk. As Respondent placed the revolver on the desk, he carelessly pointed the barrel of the gun in Sharpe's direction and pulled the hammer partially back. Sharpe reacted by quickly changing his position to avoid being in the line of fire in the event the revolver discharged. Respondent saw Sharpe's reaction. He immediately removed the revolver from the desk and placed it back in his holster without bothering to tuck in his shirt. Although concerned about this incident, Lieutenant Sharpe did not discuss his concerns with Respondent; 4/ however, he did report the incident shortly after it had occurred to Randy Snow, who was his, as well as Respondent's, immediate supervisor. 5/ On April 25, 1990, Respondent and Lieutenants Hobbie, Sharpe and Glass were standing in close proximity to one another in the secretarial area of Troop "E" headquarters and engaged in informal and friendly conversation when Respondent, in response to a remark make by Hobbie and in an effort to be humorous, removed his service revolver from his holster, pointed it at Hobbie's head and pulled the hammer partially back. Hobbie turned his head to the side and ducked. Glass threw his hands up and exclaimed, "That's loaded," in response to which Respondent stated, "I know it is." Respondent then put the revolver back in his holster. At the time of this April 25, 1990, incident, an internal investigation of Respondent's conduct was already underway. During the course of the investigation, Respondent, who had not yet completed his probationary period as a lieutenant, was returned to the rank of sergeant and placed on "administrative duty." Following the conclusion of the investigation, Respondent was dismissed by the FHP on the ground that he was unfit for duty. The FHP subsequently determined that it did not have just cause to dismiss Respondent for fitness deficiencies. Accordingly, pursuant to a settlement agreement with Respondent, it rescinded Respondent's dismissal and instead suspended Respondent for ten days without pay for the improper display of a weapon. In accordance with the terms of the settlement agreement, Respondent successfully participated in the FHP's Employee Assistance Program. He also took a firearms retraining course, which he also successfully completed. Since Respondent's return to work, his overall work performance has been rated as exceeding performance standards and he has received a letter of commendation from his supervisor. There have not been any reoccurrences of the improper conduct for which he was suspended. Apparently, he has mended his ways. He is today considered to be an effective, hard working and honest law enforcement officer who is an asset to the FHP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, by virtue of his having engaged in the conduct described in Findings of Fact 10, 18, 19 and 21 of this Recommended Order, and (2) issuing him a written reprimand and placing him on probation for a period of two years, during which time he shall be required to undergo firearms training and meet any other terms and conditions deemed appropriate by the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1993. STUART M. LERNER 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 27th day of April, 1993.
