Findings Of Fact On April 26, 1978, Petitioner was charged with speeding at the rate of 44 miles per hour in a 30 mile per hour zone and with failure to have an operator's license in his possession. He pled guilty to the speeding charge on May 2, 1978, and paid a $28.50 fine on May 5, 1978. In November, 1978, Petitioner was charged with being drunk in a public place and subsequently pled guilty to that charge on December 5, 1978, and paid a fine. In January, 1979, Petitioner was charged with the offense of illegal sale of alcoholic beverage to a minor and pled guilty to this offense on February 6, 1976, being fined $50.00. In January, 1977, Petitioner was charged with the offense of harassing and also charged with being drunk in a public place and pled guilty to both these charges on February 6, 1979, being fined for each offense. In September, 1979, Petitioner was charged with driving under the influence with a blood alcohol level of .17 percent; and on September 27, 1979, pled guilty to the amended charge of reckless driving, being fined $100.00. On January 27, 1981, Petitioner was charged with being drunk in a public place and for criminal trespass; and on January 27, 1981, he pled guilty to the charge of being drunk in a public place and was sentenced to one day in jail, with credit for time already served. On April 1, 1982, Petitioner was charged with careless driving in West Palm Beach, Florida, and subsequently pled guilty to this offense, being fined $25.00.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order denying the application for licensure. DONE and ORDERED this 24th day of November, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1982. COPIES FURNISHED: Jimmie L. Newcomb 2910 Melaleuca Drive West Palm Beach, Florida 33406 Ralph Armstead, Esquire Assistant Attorney General Department of Legal Affairs Room 212, 400 West Robinson Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission P.O. Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Marion County Board of County Commissioners (County or Respondent) discriminated against Kurt G. Mahler (Petitioner) on the basis of Petitioner's disability.
Findings Of Fact Petitioner was first employed by the County from May, 1997, until September 2006, when he was administratively discharged after exhausting of all of his leave time (sick, holiday, vacation, and personal) following a motorcycle accident on May 3, 2006. After being cleared by his doctor, Petitioner was rehired by the County as a heavy equipment operator on November 26, 2006, and he worked for the County in that capacity until his termination on June 2, 2011. The position of heavy equipment operator for the County held by Petitioner involved the operation of dump trucks, bucket trucks, and other large equipment. The County's heavy equipment is often operated in close proximity to pedestrians, bicyclers, and traffic, and operation of the heavy equipment in a safe manner is essential to the position. Historically, Petitioner was regarded as a good employee with respect to his knowledge, attendance, and effort. However, during the two years prior to his termination, there were incidences involving safety, judgment, or carelessness that ultimately led to the County's decision to terminate Petitioner's employment. On May 17, 2011, Petitioner exited the County vehicle he was driving, County truck P-87, when he pulled off the road to move a tree limb from the roadway. He exited the vehicle without putting it in park. As a result, the truck moved forward approximately six feet and hit a power pole. The accident was reported on a Marion County Incident Report that same day. Upon reviewing the report, County Roads Superintendent Chad Schindehette, who had just recently been hired by the County six days before, reviewed Petitioner's personnel file to determine the appropriate discipline to recommend. Review of Petitioner's personnel file revealed that Petitioner was still on probation from an accident that occurred on February 15, 2011, when Petitioner accidentally drove a County boom truck into a 4x4 wooden post of a County fuel bay. Petitioner's personnel file also indicated a number of other disciplinary actions that Petitioner received since his rehire in 2006, including a letter of counseling on September 5, 2007, for disregarding the safety of fellow employees in an incident involving spinning tires and mud; a letter of counseling on June 4, 2009, for lack of good judgment involving a County truck hitting a pole saw that Petitioner was holding; a written reprimand on July 14, 2010, regarding abrasiveness with co-workers; revocation of Petitioner's safe operator award on October 20, 2010, for backing a County truck into another County vehicle; and a letter of counseling on April 25, 2011, for inattention or carelessness in allowing a trim tractor to run out of fuel. After reviewing Petitioner's personnel file, Mr. Schindehette recommended to his supervisor, County Engineer Mounir Bouyounes, that Petitioner be terminated. At the time that he recommended that Petitioner be terminated, Mr. Schindehette was unaware of any medical condition that Petitioner might have that would affect his ability to perform his job. As a result of the recommendation to terminate Petitioner, Mr. Bouyounes held a meeting on March 26, 2011, with Petitioner, Mr. Schindehette, and Petitioner's direct supervisor, Vic Pollack, to discuss the facts surrounding the recommendation for Petitioner's termination. During that meeting, for the first time, Petitioner advised that he believed his medication could be the cause of his accidents and his lack of judgment. Thereafter, a pre-termination hearing was held on June 2, 2011, attended by Petitioner and Petitioner's supervisors, including County Human Resources Director Drew Adams. During the pre-termination hearing, Petitioner again blamed his past accidents and behavior on his medication. In support, Petitioner presented two letters from doctors suggesting that Petitioner's medication may have caused the incidents. One of the letters indicated that changing Petitioner's medication might resolve the problem in the future. Petitioner asked for two weeks to see if a change in medication might solve his attention problems that he claimed were responsible for his accidents. Mr. Adams was unaware prior to the June 2, 2011, pre- termination hearing that Petitioner was taking medications which might impact his performance or that Petitioner had any job restrictions as a result of any disability. After the pre-termination hearing, Mr. Adams checked with the County's Health Clinic Supervisor regarding Petitioner's medical condition and any medical limitations with regard to Petitioner's employment with the County. The most recent work duty status forms for Petitioner, dated February 10, 2011, and March 5, 2010, indicated that Petitioner could perform his job without restrictions. Mr. Adams concluded that termination was appropriate. Petitioner's employment with the County was terminated June 2, 2011. At all pertinent times, the County had a pre- termination and anti-discrimination policy in effect. Petitioner was aware of these policies. Petitioner, however, did not avail himself of his right, included in these policies, to appeal the decision to terminate his employment. The decision to terminate Petitioner's employment was consistent with the County's prior termination decisions for employees with similar disciplinary histories with regard to safety. The evidence showed that the decision to terminate Petitioner's employment was a legitimate, non-discriminatory decision based upon Petitioner's repeated safety violations and disciplinary history. Petitioner did not show that the County's reasons for terminating his employment were mere pretext, or that the County otherwise discriminated against him because of his medical condition. There is no evidence that the County was aware of Petitioner's claim that his medication may have caused his accident on May 17, 2011, or the adverse incidences documented in his personnel file, prior to Mr. Schindehette's recommendation that Petitioner be terminated. There is also no evidence that Petitioner ever requested an accommodation based upon his medical condition or reaction to medication prior to the recommendation that he be terminated. In sum, Petitioner did not show that the County discriminated against him because of his disability.
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 Complaint and Petition for Relief. DONE AND ENTERED this 12th day of October, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 12th day of October, 2012.
Findings Of Fact Mr. Stills filed a sworn application for eligibility to sit for the licensure examination for limited surety agents with the Department of Insurance on February 24, 1992. The application contains these questions: Q: Have you ever been charged with or convicted of or pleaded guilty of no contest to a crime involving moral turpitude, or a felony, or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered? What was the crime? Where and when were you charged? Did you plead guilty or nolo contendere? Where you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged: If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. Mr. Stills answered "no" to the main question and filed no response to subquestions a through f. Discharging a firearm - 1973 Mr. Stills had been charged with the misdemeanor of discharging a firearm within city limits on September 10, 1973, a violation of Section 790.15, Florida Statutes (1973). The incident occurred in Pensacola, Florida. Mr. Stills accidently discharged a shotgun in an incident involving his father. Mr. Stills had been called to his father's home because of a dispute his father was having with a neighbor. His father met him on the back porch, with a shotgun in his hand. Mr. Stills calmed his father, and was able to get him to give him the shotgun. The shotgun was an old one, and as Mr. Stills attempted to unload it, the hammer slipped and the gun accidently discharged. The neighbor called the police, and the charge was filed, and Mr. Stills paid a small fine. Second degree murder - 1984 On May 31, 1984, Mr. Stills was arrested and charged with second degree murder, in violation of Sections 775.087(2) and 782.04(2), Florida Statutes (1983). The arrest arose from an argument which Mr. Stills had with the decedent. On May 24, 1980, Mr. Stills and the decedent had an argument in which the decedent threatened to kill Mr. Stills. Mr. Stills then left. Later that afternoon, the decedent approached Mr. Stills at another location, and appeared to reach for something. Out of fear generated by the decedent's earlier threat Mr. Stills had already armed himself, and when the victim made a threatening movement, Mr. Stills shot him out of fear for his own safety. He was arrested, charged with second degree murder, but acquitted in a jury trial on March 21, 1985 based on his plea of self defense. Firearms chares - 1987 Mr. Stills was charged on April 15, 1987, in an Information with the felony of carrying a concealed firearm, in violation of Section 790.01(2), Florida Statutes (1987), and the misdemeanor of improper exhibition of a firearm, in violation of Section 790.10, Florida Statutes (1987). On that date, Officer John Gonzalez responded to a request for police assistance; the call said a man was displaying a firearm in a threatening manner. Officer Gonzalez arrived at the location given to him, and saw Petitioner, who generally fit the description of the man allegedly waiving a firearm about. Mr. Stills was then seated in an automobile. He was not waiving a gun about or threatening anyone. Officer Gonzalez approached him from the passenger side of the car, where he observed a revolver sitting on the passenger seat; the gun was loaded. He then arrested Mr. Stills. The charge of carrying a concealed firearm was dismissed by the court. Mr. Stills entered a plea of guilty to the misdemeanor of exhibiting a firearm on July 20, 1987. After exchanging correspondence with the Department, Mr. Stills amended his application, disclosing the charges and sending the necessary backup information required by the application form. He stated he had misread the question as requiring only information on felony convictions, and he had none. When the Department denied Mr. Still's application it gave these specific reasons: He had been charged with discharging a firearm within the City of Pensacola on September 17, 1973. He had been charged with second degree murder on May 21, 1984, but had been found not guilty on March 21, 1985. On April 15, 1987, he had been charged with carrying a concealed firearm and improper exhibition of a firearm, that he had pled guilty to the misdemeanor charge and been placed on three months probation yet Mr. Stills had failed to acknowledge any of these charges on his application. The Department relied on Section 648.32(2)(f), Florida Statutes, and 648.45(2)(e), Florida Statutes, to deny his application.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department enter a Final Order finding Mr. Stills eligible for licensure as a limited surety agent, and permitting him to sit for the licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. 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 March 1993. APPENDIX The following constitute my rulings on findings proposed by the Department as required by Section 120.59(2), Florida Statutes. Adopted in Findings of Fact 1. Adopted in Findings of Fact 2. Adopted in Findings of Fact 3. Adopted, as modified in Findings of Fact 4. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 6. Adopted in Findings of Fact 7. Adopted in Findings of Fact 7. Adopted in Findings of Fact 9. COPIES FURNISHED: James A. Cassidy, Esquire 6121 Palm Beach Lakes Boulevard Suite 403 West Palm Beach, Florida 33409-0223 Daniel T. Gross, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent as a correctional officer on July 12, 1991, by correctional certificate number 22381, and as a law enforcement officer on September 7, 1994, by law enforcement certificate number 148252. As of the time of the hearing, Respondent maintained both certificates. The Administrative Complaint seeks discipline against both certificates. At the time of the alleged incident, Respondent was employed as a law enforcement officer with the North Bay Village Police Department. In the early morning hours of July 22, 2000, law enforcement officers of the North Bay Village Police Department responded to a possible domestic battery call made by Anabel Rodriguez. One of the first officers to arrive at the residence of Ms. Rodriguez was Steve Brent, with his wife, who was acquainted with Ms. Rodriguez and her boyfriend, Respondent. Officer Brent found Ms. Rodriguez, who had suffered a black eye, very upset and willing to talk only to him. Although she did not identify the person who had struck her, she repeatedly asked, "how could he do this?" Officer Brent walked Ms. Rodriguez to the nearby apartment of Officer Brent and his wife. Officer Brent's wife talked to Ms. Rodriguez and tried to calm her down. In the meantime, Sergeant Hatley, who had remained a short distance from Ms. Rodriguez's apartment in a backup position, observed Respondent leaving the underground parking area of Ms. Rodriguez's apartment complex and chatted with him briefly. As soon as Sergeant Hatley learned that the victim was Ms. Rodriguez, he contacted Respondent and directed him to return to the station. Because Ms. Rodriguez had still not named her assailant, Sergeant Hatley directed that she too be brought to the station. While at the station, Ms. Rodriguez sat with Ms. Brent alone in a report-writing room that adjoined the squad room in which Respondent was present. Although a wall separated the two rooms, the door between them was open. At one point, Ms. Rodriguez joined Respondent in the squad room and spoke with him. Respondent ordered Ms. Rodriguez to look at him, and he told her that her face would heal in a couple of weeks. He told her that this situation involved his job, and he reminded her that their baby, who was one-year-old at the time, required his health insurance. About 15 minutes after speaking with Respondent, Ms. Rodriguez wrote her statement. Upset and hesitant, she repeatedly picked up and put down the pen. After about 20 minutes, she completed her statement, in which she asserted that she had caused her injuries to herself. The same evening, Respondent also gave a statement in which he denied responsibility for Ms. Rodriguez's injuries. The following day, the City of North Bay Village Police Department opened an internal affairs investigation concerning Respondent arising out of the events of the preceding day. During the investigation, the investigator learned that Respondent might have had improper contact with Ms. Rodriguez before she had given her statement. After placing Respondent under oath, the investigator asked him: "OK, uh, at any time during your presence in the North Bay Village Police Department that evening [July 22], did you have any contact, and/or conversation, with Anabel?" Respondent answered, "No." Later in the interview, the investigator asked: "OK, uh, so you at [no] time you had any conversation, or did you make eye contact or anything with Anabel?" Respondent replied, "I saw her." The investigator stated, "OK." Then Respondent added: "I didn't make any verbal contact." The investigator asked: "OK, none whatsoever, no gestures or anything like that?" Respondent replied, "No." The investigator asked: "Did you at any time tell her quote, don't worry, it'll heal in a week or two end quote?" Respondent answered, "No." The investigator asked: "OK, at any time did you say quote, if you do this to me, the baby won't have any insurance, end quote, and quote you know what they do to cops in jail, end quote?" Respondent again answered, "No." While under oath, Respondent repeatedly lied in response to the questions that the investigator asked him. The lies were material and interfered with an internal investigation of Respondent. Lying to protect his job and possibly his correctional and law enforcement certificates, Respondent failed to maintain good moral character.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certificates as a law enforcement officer and as a correctional officer. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 14th day of March, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Department of Law Enforcement Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Amador Alvarez 910 East 36th Street Hialeah, Florida 33013
Findings Of Fact Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer: The above individuals are current or past officers in their neighborhood associations. This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer. There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.
Recommendation Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her. RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 14th day of June, 1995. APPENDIX The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings of Fact Accepted in Findings of Facts (FOF) number 1. Accepted in FOF number 2. Accepted in FOF number 13. Accepted in FOF numbers 12-13. Accepted in FOF numbers 10 and 14 as modified therein. Accepted in FOF numbers 17-18. Accepted in FOF numbers 5 and 21. Accepted in FOF number 22. Accepted in FOF numbers 23-24. Accepted as modified in FOF 6 & 15. Accepted in FOF numbers 12, 16, and 24-25. Rejected. See FOF numbers 16 and 25. Accepted as modified in FOF numbers 12 and 19. Accepted in FOF 3-4. Respondent's Proposed Findings of Fact Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except: Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay. COPIES FURNISHED: David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250 Robert Augustus Harper, Esq. P. O. Box 10132 Tallahassee, FL 32302-2132 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. Dept. of State The Capitol, PL-02 Tallahassee, FL 32399-0250
Findings Of Fact Respondent is 37 years old. At all times material, she held a continuing contract of employment with the Broward County, Florida School Board. She has been a teacher for fourteen years and has been training in psychology to better her teaching skills and to become a counselor. At all times materials she was assigned by Petitioner School Board as a third grade teacher at Wilton Manors Elementary School. Respondent remained a third grade teacher on continuing contract until she was suspended without pay from her duties at the close of the workday on April 14, 1984. Effective February 2, 1984, Respondent entered upon formal disability leave with full approval of her principal and the Petitioner School Board. Representations by Petitioner's Counsel that the foregoing problems and disability leave was drug related is not evidence and there is no competent substantial evidence admitted at formal hearing to establish a relationship between Respondent's February 2, 1984 request for disability leave and drug dependency. Respondent's testimony by way of deposition is that she sought disability leave for an anxiety problem. A medical report attached to this deposition reveals that she was hospitalized for depressive reaction from February IS to February 19, 1984. Respondent had previously received therapy in connection with a divorce in 1979. On or about March 2; 1984, Respondent was living at 1421 South Ocean Boulevard Apartment 406, in Pompano Beach, Florida. She shared this apartment from 1983 until that date with Tony Trevathan and her brother. The apartment lease was not in her name. Respondent knew at least two other people who had keys to the apartment besides herself. She also felt the manager, the manager's wife, and various repairmen had had keys. Edward C. Wolff, a police officer for the City of Pompano Beach, was working with officer Canner during the night shift of March 2, 1984, and was called to the residence of the Respondent on that evening with reference to a disturbance call. At approximately 1:30 a.m., the police officers arrived in the lobby of Respondent's apartment complex, and came into contact with Mr. Trevathan. He identified himself as one of the people they were there to see, so Officer Canner talked to him in the lobby while Officer Wolff went up to the apartment. When Officer Wolff knocked on the apartment door, he identified himself as a police officer of the City of Pompano Beach and stated that he was there for a disturbance call. At first Respondent questioned his identity but after verification from the Pompano Beach Police Department she invited Officer Wolff into the apartment to talk about the problem. Respondent directed Officer Wolff to have a seat at a table located in a joint living and family room, and she sat directly across from him. While Officer Wolff was talking to Respondent he observed a clear plastic baggie on the table about one and a half feet directly in front of him. Inside the bag was a large number of white tablets. Based on his training, education, and experience as a police officer with specialized training in narcotics; he surmised that the tablets were methaqualone tablets which a later laboratory report confirmed to be the case. After Officer Wolff saw the bag with the methaqualone tablets he continued to seek information related to the disturbance call. The Respondent appeared to him to be impaired. She was unsteady on her feet and began a second sentence before finishing a previous sentence. Officer Wolff noted that there was no smell of an alcohol beverage on her breath. He felt her behavior was consistent with people who are taking cocaine or methaqualones. Officer Wolff looked at the tablets and noticed that they were marked "Lemon 714," which in his experience is a common designator for methaqualone tablets. At that point he took physical control of the tablets and advised Respondent that she was being detained for further investigation due to the narcotics he found. He radioed Officer Canner to tell him to bring Mr. Trevathan upstairs and informed him of the possible narcotics violations. Officer Wolff counted a total of sixty-seven (67) tablets in the baggie. From where he stood, officer Wolff could see clearly into the kitchen area. He saw a brown woman's shoulder bag on the counter. He testified that there were several white plastic baggies sticking out of the bag. As Officer Wolff approached the bag to look closer and determine what the white powder was, Respondent exclaimed, That's my bag". Officer Wolff removed the baggies from the purse. There were a total of eleven baggies which appeared to be filled with cocaine, which a later laboratory report confirmed to be the case. Respondent maintained that the brown bag was not a shoulder bag but a molded bag which she had thrown in the kitchen trash can earlier in the day. She stated that when she discarded it the bag was empty; but there is apparently no dispute concerning what was found in it by Officer Wolff. On top of a stove, approximately three to four feet away from the purse Officer Wolff found a couple of other clear plastic baggies that had white powdery residue which later tested as cocaine. On top of a dresser in the bedrooms Officer Wolff saw a single tablet which appeared to be the same colors shape, and form of methaqualone tablets that he had already taken. That tablet tested as methaqualone. Respondent admits that this had been her bedroom up until the day in question but that she was in the process of moving out throughout the day. She testified she had not cooked in the kitchen for a week and had slept in the living room for a week on the sofa. She had packed clothes in the bedroom earlier in the day. Officer Wolff observed the make-up mirror in the bathroom area that had a Publix check cashing card along with some white powder on it. He took the mirror and saw that the Publix check cashing card was in the name of Kathy R. Shumney. This powder subsequently tested as cocaine. Officer Wolff asked Mr. Trevathan if he was aware of the drugs and the response was in the affirmative. He did not ask Respondent and Mr. Trevathan's statement is not construed as an admission against interest by her. He then arrested Respondent and Mr. Trevathan for possession of narcotics i.e. controlled substances. Detective Deborah Pollack, the Identification Technician for the Pompano Beach Police Department, arrived at the scene in response to Wolff's radio call and was instructed to take pictures throughout the apartment. She took a total of eight pictures (Petitioner's Composite 5A through H) which portrayed the substances in their places of discovery the two persons arrested, and the general condition of the apartment. Officer Pollack testified that she arrived on the scene at approximately 1:41 a.m. Except that the first baggie had been replaced on the table the photographs substantially support Officer Wolff's testimony. Respondent testified that she had packed most of her belongings to leave the apartment for good earlier in the day. She then went to the Galleria Mall with Tony Trevathan to buy clothes. She had been in the apartment about 15 minutes when Officer Wolff arrived. At that time Trevathan was, so far as Respondent knew, removing packages of purchases from his car. The photographs by Officer Pollack confirmed that packing, unpacking, or heavy cleaning had been going on. On March 30, 1984, Respondent presented herself to Dr. Daniel H. Goldwin, M.D. Between that day and her release on April 4, 1984 she underwent urinalysis and a number of other tests which resulted in a diagnosis of anxiety, depressions and increased alcohol abuse, but she tested as having no narcotics in her system. In giving her medical history to this doctors Respondent admitted trying cocaine on occasion, but saying it made her nervous. These tests were approximately 30 days after the arrest for drug possession. Linda Marable has been Principal at Wilton Manors Elementary School for five years and supervised Respondent during the 1983-1984 school term. It is not clear whether she had observed or supervised Respondent before that term. She testified that in her opinion, Respondent's effectiveness as a teacher would be impaired as a result of the charges lodged against her because the community and faculty are aware of the drug charges lodged against Respondent due to newspaper reports. Some children in the school also had mentioned it to Principal Marable. Ronald Steven Wright, Petitioner's Director of Non- instructional Personnel, also testified that Respondent's effectiveness was impaired but Mr. Wright's opinion, backed by no specific predicate of what opportunity he has had to examine the knowledge and the reactions of others in the educational community, is not of significant weight. Both Mr. Wright and Ms. Marable conceded that innocence of the charges would affect their opinions. Neither educator felt arrest without proof of wrongdoing should be the controlling factor in effectiveness. However, Ms. Marable felt the mere notoriety of the arrest would be significant on a case by case basis. On April 24, 1984, Linda Kay Marable, Principal of Wilton Manors Elementary School, reported to Petitioner's "Personnel Services" that four months before, on 11/01/83 and 11/02/83, Respondent was tardy in arriving at school. How late after 8:00 a.m. Respondent arrived was not established by any competent evidence in the record. She also reported on that date that on 11/29/83 Respondent was absent and did not call for a substitute until 7:45 a.m., which was considered "late" pursuant to establishment of the official school day. In connection with the foregoing Respondent had received a memorandum dated November 30, 1983 advising her that further such situations would result in formal charges of dismissal for "willful neglect of duties". Principal Marable also reported on April 24, 1984, that on some occasion not specified Respondent had been late in handing in lesson plans that her students' papers were not graded, that the MBS test was not up-to-dated and that Respondent had an above average number of problems with classroom control. The record reveals no specificity of date or incident being proved-up for these problems. The principal further reported to "Personnel Services" that Respondent was tardy in arriving at school after 8:00 a.m., on 2/02/84, but how late Respondent arrived was never established. Until Respondent was subsequently arrested on March 2, 1984 for drug possession, none of these earlier problems were reported to Petitioner. The April 24, 1984, Memorandum of Report mentioned these incidents and drug charges together and recommended either not rehiring Respondent for the next term (1984- 1985) or returning her to annual contract. Respondent has never been formally charged with unsatisfactory performance except as it might relate to her arrest on March 2, 1984. Petitioner has urged a number of proposed findings of fact based upon a plea to certain criminal charges lodged against Respondent arising out of the March 2, 1984 arrest, which plea was entered June 22, 1984. For the reasons set forth in the following conclusions of law the undersigned rejects these proposals and specifically makes no findings of fact in connection with that plea. By a letter to the Hearing Officer filed with the Division of Administrative Hearings September 12, 1985, which at Respondent's request has been deemed a Motion for Rehearing, Respondent represented that she did not attend the formal hearing in this cause on June 17, 1985 because she "was a patient at Humana Hospital Biscayne in the Alcohol and Substance Abuse Program." As a pleading this letter/motion is part of the record herein.
Recommendation Accordingly, upon the foregoing findings of fact and conclusions of law, it is , RECOMMENDED: That the School Board of Broward County, Florida enter a Final Order rescinding its suspension without pay of Respondent, reinstating her as a continuing contract teacher as part of its instructional personnel, and reinstating all back pay and benefits subject to any appropriate mitigation by consideration of disability leave or physical inability to work. DONE and ORDERED this 10th day of January, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 10th day of January, 1986.
Findings Of Fact As described in Respondent's exhibit 3, on May 18, 1987 Petitioner made application with Respondent for licensure. In response to question 13 about the number of arrests he had had, he noted that in 1947 that he had been arrested for the offense of "None (sic) tax liquor" and the outcome was said to be "six months". This is perceived as reference to the fact that the violation related to a liquor law in which Petitioner says he was given a six month sentence. A Federal Bureau of Investigation offense report, part of Respondent's exhibit 5, speaks to an arrest on February 3, 1949 related to violation of an Internal Revenue regulation of liquor laws and shows a jail commitment upon default of a $500.00 bond. The application also stated that the Petitioner had been arrested several times for fighting, but the cases had been dismissed. Petitioner was licensed by Respondent based upon the 1987 application previously referred to. Subsequent to his licensure he was arrested on November 8, 1987 for battery, in particular spouse abuse. This was an alleged violation of Section 784.03, Florida Statutes. The Florida Department Law Enforcement offense report, part of the Respondent's composite exhibit 3, shows the disposition of the offense by an adjudication of guilt. Petitioner through his testimony identified that he had pled nolo contendere to this offense. As a consequence of this incident he lost his license through revocation proceedings. On May 8, 1989 Petitioner reapplied for licensure. A copy of his application may be found as part of Respondent's composite exhibit 2. In this instance in response to question 13 he indicates that he was arrested in 1958 for making moonshine whiskey and served five months and 29 days. Again this is perceived as an acknowledgment of the offense of February 3, 1949 previously described. In answer to question 13 he also referred to the 1987 offense related to his wife as "spousal abuse" and stated that he had stayed overnight in jail. The Florida Department of Law Enforcement offense report which is part of Respondent's exhibit 3 refers to "2D credit", taken to mean two days credit for the time he had served. In the 1989 application Petitioner sought the assistance of counsel in offering a supplemental answer to question 13 which gives a more complete explanation of the non-tax whiskey case and the 1987 battery. In the course of this explanation by counsel he states that adjudication of guilt was withheld on the plea of nolo contendere for the 1987 offense. Citation is made to the case of Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). In addition a disclaimer is given about other offenses in 1971 for larceny; in 1985 for carrying a concealed weapon; in 1983 for loitering and the belief that these items must pertain to someone other than the present Thomas Felton. Given the close proximity in time of the 1989 application to the loss of the license issued in 1987 through revocation, Petitioner withdrew his request for licensure. In the 1989 application the information that had been placed on the application form had been put there by Petitioner's wife. On February 7, 1990 Petitioner submitted his present application for classes "D" and "G" licenses. On this occasion the form application was filled out by his employer in the person of a Ms. Ross. Petitioner doesn't know what Ms. Ross used as an information base for filling out the 1990 application. She was aware of the fact that he had spent the night in jail in 1987. This is related to the incident with his wife in which he was arrested for battery. In the 1990 application, Respondent's exhibit 1, in answer to question 13 Petitioner says that in April 1948 that he had been arrested for moonshine selling and was given six months. Again this is seen as a comment on the February 3, 1949 incident related to the liquor laws. In the 1990 application he also mentions that he had been arrested several times for fighting and that the cases had been dismissed. He makes no reference to the 1987 incident of battery against his wife. Petitioner describes his omission of the 1987 arrest as that of someone who is careless as opposed to someone attempting to hide the facts. He accurately points out that the Respondent had a record of the 1987 battery offense against his wife. Having considered his explanation in the context of other facts presented, Petitioner is not found to have intended to misrepresent information concerning the 1987 battery offense against his wife when submitting the 1990 application. On March 13, 1990 as shown in the joint exhibit 1, Petitioner rejected the request for licensure. It gave as reasons the existence of the battery charge of November 8, 1987 in that the failure to disclose information about that charge was seen as a fraudulent or willful misrepresentation in applying for the license, in violation of Section 493.319(1)(a), Florida Statutes. Further, the existence of that offense was seen as the conviction of a crime directly related to the business being sought for licensure, in a circumstance where a plea of nolo contendere had been entered, in violation of Section 493.319(1)(c), Florida Statutes. This matter was seen as being in violation of Section 493.319(1)(j), Florida Statutes in that Petitioner was alleged to have committed a battery or use of force or violence against his wife. There is the overall reference within this explanation of denial which allows the agency in certain instances to deny a license for violation of any provision within Chapter 493, Florida Statutes. In particular that reference is Section 493.319(1)(p), Florida Statutes. For all these statutory reasons the application was denied. On March 27, 1990 Petitioner filed a formal petition requesting a hearing. This request was submitted to the Division of Administrative Hearings for consideration. The final hearing ensued. According to Petitioner the incident of spousal abuse occurred as follows: On the night he was arrested he was awakened by his wife who said that their children were fighting and one of those children had a knife. He used a metal walking stick to stop the daughter with the knife and hit his wife on the left forearm which became swollen after that blow. At the time he hit her she was behind him. He was then taken to jail and spent the night. He pled no contest without benefit of consultation with counsel. The judge told him he could go home. At the time he entered his plea he told the judge that he had hit his wife accidentally. Petitioner didn't indicate that he was trying to restrain the wife at the time he struck her. He stated that he was unacquainted with what the wife may have told the police about the incident. When cross-examined Petitioner said that he could not recall if he had been arrested for striking his wife before this incident, but that he didn't think so. He was then confronted with information concerning a 1969 incident of striking his wife and upon being reminded of that circumstance admitted that he had been fighting with his wife in that year. He also acknowledged that he could have been fighting with her in 1967. The wife in 1969 was the same wife as in 1987. The 1969 incident with his wife was felt by the Petitioner to have been another occasion of problems related to his children. As part of Respondent's composite exhibit 5, the Federal Bureau of Investigation offense report, there are items related to "DC" taken to mean disorderly conduct. The disposition of the disorderly conduct case in 1967 is shown as being discharged from municipal court. The 1969 incident of disorderly conduct is one disposed by a fine of $20.00 in municipal court. Both the incident in 1967 and the incident in 1969 occurred in Jacksonville, Florida, as did the 1987 incident with his wife. In her testimony Petitioner's wife says that she was hit on her right hand in the 1987 incident. She testified that the children called the police and that a lady officer took Petitioner to jail. She indicates in the testimony that the Petitioner and his wife were not fighting. She acknowledges that she was hit with a walking cane. She says she told the police that she was hit on her hand by her husband. She said she doesn't know whether she was hit intentionally. She does acknowledge that there was a scuffle of some sort. She states that in the past that she has called the police and that her husband was arrested when they have fought. In 1969 both she and her husband were arrested for that incident, according to the wife. She has no specific recollection about the incident in 1967. On the night that her husband was arrested in 1987 she did not attempt to stop the police from making the arrest. According to Mrs. Felton, at a later time Petitioner told her that he didn't intend to hit her. She says that six or seven kids were involved in the incident from ages 16 to 25. She states that she forgave her husband for the incident on the next day following the November 8, 1987 fracas. Kathy Evans offered testimony. She is an officer with the Jacksonville Sheriff's Department in Jacksonville, Florida. She responded to the incident on November 8, 1987 and arrested the Petitioner. By report that was given to her at the scene after she arrived, gathered from unidentified sources at the scene, she was led to believe that the Petitioner and his wife had had an argument about the children. This lack of identification of the reporters is associated with the officer's inability to recall at hearing who had made the report. By report, Petitioner sided with one of the daughters and the wife favored the other daughter's position. Petitioner got angry with his wife and hit her. In sequence, there had been a verbal argument between the daughters and the parents became involved and the wife was struck. As the officer recalls the nature of the injury, it was to the right arm of the wife and left a black and blue welt. The wife didn't object when the husband was arrested for spouse abuse. The officer observed four people at the scene of the event, two of these people being the Petitioner and his wife and the others the children. Having considered the testimony of the three witnesses who appeared at hearing, the officers account of what she observed after the incident and recount of what she was told at the scene is credited. The explanations by the Petitioner and his wife are not credited. This decision is reached in consideration of the demeanor of those witnesses, their motives for truth and veracity and the fact that they were not forthcoming in the explanation of the incident. Nor has the Petitioner been convincing in any suggestion that the circumstance of his plea of nolo contendere to the offense of battery related to the 1987 incident was under circumstances less than proper. Petitioner through his proof has failed to overcome the presumption created by the nolo contendere plea to the offense. Under the circumstances Petitioner has not shown sufficient rehabilitation to allow licensure following the revocation.
Recommendation Based upon the findings of fact and conclusions of law reached it is recommended that a final order be entered which denies Petitioner's application for class "D" and "G" licenses. RECOMMENDED this 8th day of August, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2210 The following discussion is given concerning the proposed facts found in Respondents proposed recommended order. Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is subordinate to facts found with the exception of the second sentence which is rejected. Paragraph 7 is subordinate to facts found. COPIES FURNISHED: The Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse, General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 David B. Ferebee, Esquire Tassone and Ferebee 1833 Atlantic Boulevard Jacksonville, FL 32207 Henri C. Cawthon, Esquire Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
The Issue Whether Respondent, or his agent or employee, possessed, or permitted someone to possess, at or in the licensed premises, alcoholic beverages not authorized by law to be sold by Respondent. Whether Respondent, or his agent or employee, allowed patrons to gamble at card games, contrary to Section 849.01, Florida Statutes. Whether Respondent, his agent or employee allowed patrons to possess and consume marijuana and crack cocaine on the licensed premises.
Findings Of Fact Respondent Dennis Maxwell holds DABT License number 45-00933, and owns and operates the Club 21 in Leesburg, Florida. License number 45-00933 is a series 2-COP license, authorizing the sale and consumption of beer and wine only on the premises. Mr. Maxwell has been in business as the Club 21 at 945 East Main Street in Leesburg, Florida, since approximately February 1992. Club 21 is frequented by a predominantly young (early 20's), black clientele, not unlike a number of other bars in Leesburg. Club 21, however, has been unique in the severity of problems experienced by the Leesburg Police in attempting to maintain peace and lawfulness. Upon information that the service of alcoholic beverages to minors has been occurring, agents of DABT, with assistance from local law enforcement, entered Club 21 in an undercover capacity at approximately 10:00 p.m. on Friday, January 15, 1993. They discovered open and obvious violations of both the beverage law and Florida criminal law, specifically gambling (card game for money), and unauthorized liquor being stored and consumed on the premises. On January 15, 1993, at 10:00 p.m., a high stakes card game was in progress in a somewhat separate area of the premises just to the left of the entrance. At a table with a group of men playing cards, was a pile of currency, with a large "pot" of money in the middle of the table. The pot was collected by the winner of each hand. Additionally, other persons standing around the seated players were placing separate wagers in connection with the ongoing game. The game was occurring in plain view of the patrons in the bar, and anyone entering or exiting the premises. The card game continued for approximately 20-30 minutes prior to uniformed law enforcement officers entering the premises. The Respondent was present at Club 21 during that entire night, and admitted to having permitted the card games to occur, but denied that gambling was occurring. Mr. Maxwell, likewise, admitted that he would recognize the commonly understood circumstances of a card game for money by the money set out in front of each card player, and the "pot" of money in the middle of the table. Although he observed the same game occurring as testified to by other witnesses, he does not recall seeing the money on the table. Respondent further testified that the area of the bar known as the "game room" was often used for card games, but that he had never been aware of gambling occurring in connection with such games. Respondent's testimony is not credible in light of the circumstances. The licensee did permit persons to play for money at a card game on his premises. During the course of the DABT operation on January 15, 1993, several bottles of unauthorized liquor was observed in plain view in the kitchen of Club The liquor consisted of one unsealed 1.75 liter bottle of Seagram's Dry Gin, one unsealed .750 liter bottle of Seagram's dry Gin, and one unsealed pint bottle of Canadian Mist Whiskey. Petitioner was aware that the liquor described was in fact in the kitchen. As to the larger bottle of gin, Mr. Maxwell contended that it belonged to one of his employees, Karl Welcome, who was celebrating his birthday that night, and had stopped by the premises to engage in a celebratory toast with his friends and coworkers. Mr. Welcome testified to that effect on direct examination, but admitted on cross that his birthday is actually May 18, not January 15, and that he had made up that story originally for the benefit of the officer who had found the liquor. As to the remaining bottles of liquor, Respondent claimed that he had confiscated them from patrons earlier that afternoon, and placed them in the kitchen because he was too busy to dump them out. In light of Mr. Maxwell's further testimony that there is hardly any business at Club 21 in the afternoon, and he does not have much to do until nighttime, his contention is not credible. Petitioner knew that the liquor was in the kitchen, and took no meaningful action to correct that situation. During the course of their stay in an undercover capacity inside Club 21, two witnesses observed what they believed was marijuana being openly smoked by patrons in the area of the bar itself on the premises. One witness described two patrons openly sharing what appeared to be a marijuana joint while actually seated at the bar. The "joint" was passed back and forth openly and in plain view of two bartenders who were standing directly in front of these patrons, and who actually brought beer to, and took money from, these patrons while they were openly smoking a joint. Two witnesses smelled an odor which is commonly associated with the smell of marijuana burning in the area of the bar during the entire time they were there. From the smell, they testified that in their opinion it was obvious that other patrons besides those seated directly at the bar were smoking as well. Officers of the Leesburg Police Department arrested a patron of Club 21 on the premises for possession of cocaine on the evening of January 15, 1993. Officer Mullin field tested the substance and testified that both his field test and the laboratory analysis conducted on it confirmed that it was cocaine. The possession charges are the subject of an ongoing criminal case. Respondent had been visited by a DABT Special Agent during the fall of 1992 on a routine call. At that time, unauthorized liquor was found of the same variety as was found in January 1993. A record of the discovery was made but a notice of violation was not issued. Rather, the seriousness of unauthorized liquor on the premises was discussed and Mr. Maxwell had been warned not only about that particular violation, but about the dangers of drug use on the premises, and related problems. Mr. Maxwell recalled the visit and the warning, and testified that Agent Hurlburt had been honest and forthright with him, and had emphasized the risk of an enforcement action against a licensee for allowing violations of law to occur on a licensed premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's license number 45-0093 be suspended for a period of twenty (20) days, and that Respondent pay a civil penalty in the amount of $1,000.00. DONE AND ENTERED this 22nd day of July, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of July, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 6, 7, 8, 9, 10(in part), 13, 14 Rejected as immaterial, irrelevant or subsumed or argument: paragraphs 4, 5, 10(in part), 12(in part) Rejected as against the greater weight of evidence: paragraphs 12(in part) COPIES FURNISHED: John F. Gilroy, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-1007 Dennis L. Maxwell Post Office Box 53 Eustis, Florida 32727 John Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Center 1940 No. Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
