Findings Of Fact The Petitioner has alleged that the Respondent in Administering grants under the Comprehensive Employment and Training Act (CETA) failed to comply with the applicable rules and regulations. As a result thereof, a total of $6,503 was spent in violation of applicable rules and regulations. The findings of fact and conclusions of law of the Hearing Officer as set out in the Recommended Order are hereby accepted and adopted, except that the undersigned rejects the hearing officer's conclusion of law at paragraph two on page five of the recommended order. The undersigned concludes that according to applicable law the amount of $4,824 charged to the contract on account of the ineligible participant is not an allowable expenditure, and that Respondent is liable for the payment of that sum. It is further found that Respondent did not present adequate evidence to refute the findings of its failure to comply with applicable regulations. WHEREFORE, it is Ordered: That Respondent immediately repay $6,503 spent in violation of applicable regulations. In the event either party disagrees with this determination, an appeal can be filed with Mr. Lawrence Weatherford, Regional Administrator, United States Department of Labor, 1371 Peachtree street, N.W., Room 405, Atlanta, Georgia 30309. The provisions pertaining to the appeal process, 20 C.F.R. 676.88 et. seq., are attached hereto. Dated this 27th day of, 1982 in Tallahassee, Leon County, Florida. CHARLES R. RUSSELL, Director Division of Employment and Training COPIES FURNISHED: Frances Jackson Box 70 Live Oak, Florida 32060 Chad Motes Suite 131, Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32301 Henry Warren Internal Audit Division of Employment and Training Atkins Building 2562 Executive Center Circle East Tallahassee, Florida 32301 Donald R. Alexander Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY AMENDED FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF EMPLOYMENT AND TRAINING DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT AND TRAINING, Petitioner, vs. CASE NO. 82-882 SUWANNEE RIVER ECONOMIC COUNCIL, INC. Respondent. /
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay $1,654 in questioned costs under Contract No. 80ET-86-03-71-17-021. The questioned costs pertaining to Contract No. 79MP- 2U-03-44-17 should be allowed. DONE and ENTERED this 25th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 25th day of June, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Frances Jackson Post Office Box 70 Live Oak, Florida 32060 Wallace E. Orr, Secretary Department of Labor and Employment Security 206 Berkley Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF EMPLOYMENT AND TRAINING DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT AND TRAINING, Petitioner, vs. CASE NO. 82-882 SUWANNEE RIVER ECONOMIC COUNCIL, INC. Respondent. /
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
The Issue Whether the Respondents committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Adeking, Inc. is a corporation that was incorporated under the laws of the State of Florida on August 8, 1990. Adeking, Inc. was incorporated by Bamidele Adeoba and by Shakirat Adeoba, who became the corporation's initial president and vice-president, respectively. The corporate document number issued by the Department of State, Division of Corporations for this incorporation was L92905. Adeking, Inc. registered the name Adeking Security Services as a fictitious name with the Department of State, Division of Corporations, on November 7, 1994. The number assigned to this fictitious name registration by the Division of Corporations was G94311900006. At the times pertinent to this proceeding, Respondent, Adeking Security Services, was the holder of license number B9400128, which is a Class "B" Security Agency License issued by Petitioner. That license reflects that Alice A. Aina is the president of Adeking. 1/ Adeking, Inc. registered the name King's Security Services, Inc. with the Department of State, Division of Corporations, as a fictitious name on September 4, 1991. The number issued for this fictitious name registration was L92905. At a shareholder's meeting of King's Security Services, Inc. on May 14, 1994, Ms. Aina was elected president and Bamidele Adeoba was elected chairman of the board of directors of King's Security Services, Inc. By Final Order entered July 19, 1994, Petitioner revoked the Class "B" Security Agency License of King's Security Services, Inc. and also revoked the Class "D" Security Officer and Class "MB" Security Manager Licenses of Bamidele Adeoba and Shakirat Adeoba. The Final Order provided, in part, that Bamidele Adeoba and Shakirat Adeoba ". . . shall CEASE AND DESIST engaging in activities regulated by Chapter 493, Florida Statutes . . . " Ms. Aina was president of Adeking, Inc. and of King's Security Services, Inc. when the Final Order was entered on July 19, 1994. Ms. Aina knew or should have known of the entry of this Final Order. Ms. Aina allowed Bamidele Adeoba and Shakirat Adeoba to have operational control over Adeking Security Services after the entry of the Final Order on July 19, 1994. The activities of Adeking Security Services over which Mr. and Mrs. Adeoba exercised operational control are regulated by Chapter 493, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that incorporates the findings of fact and conclusions of law contained herein; revokes the Class "B" Security Agency License B9400128 held by Adeking Security Services; revokes any license held by Alice A. Aina that had been issued to her by Petitioner pursuant to Chapter 493, Florida Statutes; imposes an administrative fine against Adeking Security Services in the amount of $500.00; and imposes an administrative fine against Alice A. Aina in the amount of $500.00. DONE AND ENTERED this 15th day of March, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 15th day of March 1996.
The Issue The issues are whether Respondent violated Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2001), and if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent was employed as a certified correctional officer at the Franklin County jail in Apalachicola, Florida. She held the rank of sergeant. On the evening of May 19, 2001, Respondent was not on duty. Instead, she was driving her vehicle around Apalachicola, Florida. Patricia Carroll was a passenger in Respondent's vehicle. Ms. Carroll was employed as the Finance Director for the Franklin County Sheriff's Office. At approximately 7:45 p.m., two females in another vehicle stopped in the street to talk to Respondent. The driver of the second vehicle, H.B., was 16 years old. The passenger in the second vehicle, C.B., was 18 years old. H.B. and C.B. asked Respondent if she would purchase some alcohol for them. Respondent agreed to make the purchase, telling H.B. and C.B. to meet her at the grocery store. Respondent and H.B. drove their vehicles to a grocery store parking lot. Respondent asked H.B. and C.B. if they wanted a six-pack of beer. Responding affirmatively, H.B. and C.B. asked Respondent to buy them a six-pack of Zima. H.B. and C.B. gave Respondent money to buy the alcohol. Respondent went into the grocery store and purchased a six-pack of Zima. She exited the store and gave the alcohol to H.B. and C.B. through passenger window of H.B.'s vehicle. The two vehicles then left the parking lot. Casey Nash, an employee at the Franklin County Courthouse, was sitting in a vehicle in the grocery store parking lot when Respondent and H.B. arrived there. Ms. Nash saw Respondent give the alcohol to H.B. and C.B. Ms. Nash knew H.B. was a minor. Subsequently that evening, Ms. Nash reported her observations to a deputy sheriff. On May 21, 2001, H.B. and C.B. gave sworn written statements regarding the incident to an investigator for the Franklin County Sheriff's Office. In the statements, H.B. and C.B. stated that Respondent had purchased beer from them. On May 29, 2001, Respondent gave a sworn written statement to an investigator for the Franklin County Sheriff's Office. Respondent's statement indicated that she purchased an alcoholic beverage for Ms. Carroll at the grocery store on the evening of May 19, 2001. She did not reveal her purchase of alcohol for H.B. and C.B. Respondent was charged in a criminal case with contributing to the delinquency of a minor. She subsequently pled nolo contendere to a lesser included charge of aiding and abetting possession of alcohol by an underaged person. On June 7, 2001, the judge accepted Respondent's plea, withheld adjudication of guilt, and ordered Respondent to pay a $195 fine. On June 20, 2001, Respondent made a second sworn statement to an investigator for the Franklin County Sheriff's Office. In the second sworn statement, Petitioner admitted that she had purchased the alcohol for H.B. and C.B. on May 19, 2001, and that she had avoided revealing all the facts in her May 29, 2001, sworn statement. According to the second sworn statement, Respondent did not tell the whole truth because she "was confused and scared about what had happened." As a result of her actions, Respondent's employer demoted her, taking away the rank of sergeant and placing her on probation for six months. Respondent's employment at the Franklin County jail subsequently was terminated for reasons unrelated to this case. The record does not reveal how long Respondent has been a certified correctional officer. There is no evidence that Respondent has a prior disciplinary history. Respondent currently is working as a painter. It was apparent at the hearing that Petitioner is remorseful for her misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 19th day of September, 2003. COPIES FURNISHED: Erika R. Bartley 215 Martin Luther King Avenue Apalachicola, Florida 32320 Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 James Crosby, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all of his rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 2002 until 2011, including all times relevant to this case, Petitioner Jonathan Bleiweiss ("Bleiweiss") was employed as a deputy sheriff by the Broward Sheriff's Office. As a public employee, he became a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). On February 12, 2015, Bleiweiss pleaded guilty in the Broward County Circuit Court, Seventeenth Judicial Circuit, to 14 counts of armed false imprisonment.1/ False imprisonment, as defined in section 787.02(1)(a), Florida Statutes, is a felony of the third degree. This crime must be reclassified upward, however, where, as here, "the defendant carrie[d], display[ed], use[d], threaten[ed] to use, or attempt[ed] to use any weapon or firearm" while committing the felony, unless an exception applies, which none did in Bleiweiss's case. See § 775.087(1)(c), Fla. Stat. Accordingly, armed false imprisonment, as charged against Bleiweiss, is a second-degree felony. Based on Bleiweiss's pleas, the court entered judgments of conviction adjudicating Bleiweiss guilty.2/ The Amended Information from one of the criminal cases, which is dated October 1, 2009, sets forth the ultimate facts underlying each of the false imprisonment charges to which Bleiweiss entered a plea of guilty, as follows: [O]n or between [various dates], in [Broward County, Florida, Bleiweiss] did forcibly, by threat, or secretly confine, abduct, imprison, or restrain [the alleged victim] without lawful authority and against his will, and during the commission thereof Jonathan Bleiweiss carried or displayed a firearm . . . . By pleading guilty, Bleiweiss admitted the foregoing allegations, which the undersigned accordingly adopts as findings of fact herein.3/ These facts, however, which closely conform to the elements of the offense, shed little light on what actually happened. At the plea colloquy, Bleiweiss stipulated to a few additional facts, agreeing that if the "cases were to proceed to trial the State would prove that . . . while working as a Broward Sheriff's deputy while dressed in full police uniform and driving a marked police vehicle [Bleiweiss] did forcibly by threat or secretly confine certain individuals whose initials are AL, JM, SG, MP, LS, AP, and JH against their will, and in the course thereof . . . exhibited a firearm." These undisputed factual grounds for Bleiweiss's plea are adopted as findings, as well. The court sentenced Bleiweiss to five years in prison, to be followed by ten years on probation. As of the final hearing in this case, Bleiweiss was incarcerated. In due course the Division learned of Bleiweiss's pleas and adjudications of guilt. Upon review, the Division determined that Bleiweiss had been convicted of "specified offenses" (a legal term that will be discussed below) and concluded that, consequently, he had forfeited his rights and benefits as a member of the FRS. By letter dated November 24, 2015, the Division notified Bleiweiss of its preliminary decision regarding the forfeiture of his retirement benefits and offered him an opportunity to request a formal administrative proceeding to contest the determination. Bleiweiss timely requested a hearing. Although not directly relevant to the disposition of this dispute, it is a fact that, when he was charged with armed false imprisonment, Bleiweiss was also charged with multiple crimes relating to sexual battery upon various persons in his custody. The government nolle prossed these charges simultaneously with the entry of Bleiweiss's guilty pleas. Therefore, the government never proved that Bleiweiss had committed any sex crimes, as alleged, and, obviously, he was not convicted of any such crimes. At the final hearing in this proceeding, the Division could have offered nonhearsay evidence——e.g., the testimony of an alleged victim, eyewitness, or Bleiweiss himself——tending to establish that, in the course of committing the acts of false imprisonment for which he was convicted, Bleiweiss additionally committed sexual batteries against the person or persons whom he had unlawfully detained. The Division, however, did not offer any direct, nonhearsay evidence that during the commission of the felonies to which he pleaded guilty, Bleiweiss had sought or secured any personal gain or advantage in the form of sexual gratification or elsewise.4/ Moreover, when asked at hearing by the Division's counsel whether he had engaged or attempted to engage in sexual activities with any of the persons whom he falsely imprisoned, Bleiweiss testified under oath that he had not. The record contains scant evidence, if any, concerning the actual circumstances surrounding the commission of the crimes to which Bleiweiss pleaded guilty. Bleiweiss testified that it was his understanding that the factual bases for the guilty pleas were that he had conducted traffic stops without probable cause (thereby committing the crime of false imprisonment); conducted searches without probable cause (committing simple battery); and carried a holstered gun, resulting in the upward reclassification of the false imprisonment charge from a third- to a second-degree felony. Bleiweiss made clear, however, that this was not what actually happened, as a matter of historical fact, but rather that this was what he understood to be the factual predicate for the plea agreement. He believes that, in fact, he did nothing wrong and was not guilty of any crimes.5/ Although Bleiweiss did not testify about what he actually did that resulted in his being (as he sees it) wrongfully charged, prosecuted, convicted, and imprisoned, he declared that he had "no problem with" doing so if the undersigned wanted to know. The undersigned elected to let the Division inquire about this, but the Division did not pursue the matter. The result is that the only facts regarding Bleiweiss's conduct which the undersigned can consider in determining whether he committed a specified offense are those set forth above in paragraphs 3 and 4 (the "Basic Facts"). Because the Division, not Bleiweiss, has the burden of proof in this case, the adverse consequences of insufficient evidence fall on the Division. The Basic Facts do not directly establish that Bleiweiss committed the crimes of false imprisonment with the specific intent to defraud the public or the Broward Sheriff's Office of the right to receive the faithful performance of his duties as a deputy, which the Division must prove as a condition of forfeiture. There is, indeed, no persuasive direct evidence in the record of Bleiweiss's intent. Because false imprisonment is a general intent crime,6/ moreover, the commission of this crime does not, without more, give rise to a reasonable inference of fraudulent intent. Here, the Basic Facts establish, in addition to the bare elements of the crime, that Bleiweiss committed false imprisonment while dressed in uniform, carrying a gun, and driving his police car. These facts are not only consistent with the conclusion, but persuasively demonstrate (and it is found), that Bleiweiss used the power of his official position in the commission of these crimes——an additional element that the Division needed to prove. There can be little doubt that Bleiweiss's ability to detain individuals was significantly enhanced, if not dependent upon, the authority of his office, which was literally worn upon his person. Fraudulent intent is another matter. This is because police officers are called upon in the proper exercise of their duties to detain or restrain persons, forcibly or by threat, against their will.7/ The only fact that necessarily distinguishes a lawful arrest from an act of criminal false imprisonment is the presence of "lawful authority." Thus, a police officer who makes a traffic stop without reasonable suspicion,8/ or a warrantless arrest without probable cause,9/ theoretically could commit the crime of false imprisonment——which, to repeat, is a general intent crime that can be committed without the intent to unlawfully detain the victim——even while intending to perform his official duties faithfully; put differently, the commission of false imprisonment is not necessarily so inconsistent with the faithful performance of a police officer's duties that the commission of the crime inevitably implies an intent to defraud on the perpetrator's part.10/ The upshot is that while there is a little more here, factually speaking, than the bare elements of false imprisonment to consider, the circumstantial evidence is yet insufficient to persuade the undersigned to find, by inference, that Bleiweiss intended to defraud the public or his employer, so as to make it appear that he was faithfully discharging his duties when he was not. On the instant record, the undersigned can only speculate that this was the case——and that is not enough. The evidence is even weaker on the question of whether Bleiweiss, in committing the crime of false imprisonment, sought or obtained a profit, gain, or advantage for himself or another person, which is something else that the Division must prove. As previously discussed, the record is devoid of evidence sufficient to establish that Bleiweiss obtained or sought a profit, gain, or advantage for himself in the form of sexual gratification or the fulfillment of some other "untoward intentions." The Division argues that Bleiweiss "gained an advantage over the individuals [whom he falsely imprisoned] by employing his uniform, patrol vehicle, firearm, and general status as an officer of the law who must initially be obeyed . . . ." Resp.'s PRO at 11. Such an "advantage," however, was inherent in the power, rights, privileges, and duties of Bleiweiss's position as a deputy sheriff and was something he had whenever he went to work. An advantage a public employee enjoys by virtue of the power, rights, privileges, or duties of his position cannot be the advantage realized or sought as the object of a "specified offense" as defined in section 112.3173(2)(e)6., Florida Statutes, for the obvious reason that, if it could, the "profit, gain, or advantage" element would always be met——and thus would be unnecessary. The Division's argument on this point must, therefore, be rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order restoring to Bleiweiss his rights and benefits under the FRS and providing for payment to him of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 7th day of June, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2016.
The Issue Whether the Petitioner, Jose Iglesias (Petitioner or Iglesias) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On August 14, 2003, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. The Complaint alleged: Vice Mayor Iglesias is constantly interfering with Police Department’s day-to- day operations, and spreading false rumors about Police Department personnel. (Document #1) Vice Mayor Iglesias is causing a hostile work environment with constant complaints about officers. Vice Mayor Iglesias is constantly encouraging racism, pitting hispanics against white and black officers of the Department. Vice Mayor Iglesias filed false police reports (verbally) constantly for his own gain and benefits. Vice Mayor Iglesias’s 16-year-old son works part time in Town Hall. (Nepotism) Vice Mayor Iglesias improper use of his title by instructing the Town Manager to take actions on the police department, and even retaliation against the Police Chief and myself. Vice Mayor Iglesias ordered public records about himself not to be released, and then when they were released he insisted the secretary releasing the records be fired. (Document #1) Mr. Iglesias is falsely using the title of M.D. and in fact used this title to gain his seat on the council and then becoming Vice Mayor. When Mr. Iglesias has been questioned on this matter by residents in the past he has stated he was a brain surgeon, a foot doctor, and a chiropractor, and could not list a hospital where he did his residency to become M.D. (Document #2) At all times material to this case the Petitioner was Vice Mayor serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Respondent is a town employee and serves as a police sergeant within the police department. Mr. Nieman has been so employed for over 20 years. After an investigation of three of the allegations set forth in the Complaint (only three were deemed legally sufficient to warrant investigation) and consideration of the Advocate’s recommendation, the Ethics Commission entered a Public Report on March 16, 2004. The Public Report dismissed the Complaint and closed the matter. On April 14, 2004, the Petitioner filed the instant Fee Petition pursuant to Section 112.317(8), Florida Statutes (2004). The Fee Petition alleged that the Complaint “is based on eight allegations, all of which are false and were known to be false by Complainant when he filed the Complaint.” Additionally, the Fee Petition stated the Complaint “was filed by the Complainant with the knowledge the Complaint contained one or more false allegations, or with reckless disregard as to whether the Complaint contained false allegations. ” At hearing, the Petitioner presented evidence as to the three allegations of the Complaint that were investigated and deemed legally sufficient to require an ethics investigation. Those allegations were: whether the Petitioner had filed false police reports for his personal benefit; whether the Petitioner had attempted to prevent the release of a public record or insisted on the firing of the person who had released the record; and whether the Petitioner had caused his son to be employed by the Town. The false police reports allegation stemmed from the Petitioner’s use of public roads for rollerblading. The Petitioner is an avid rollerblader and likes to rollerblade for exercise. The Petitioner opined that rollerblading puts less stress on his back and has less impact than jogging. The Petitioner frequently rollerblades on the public road within the Town. Automobile traffic on the road must go around the Petitioner in order to pass. It is the Petitioner’s position that since there is no sidewalk or shoulder suitable to rollerblade, he is entitled to use the road surface just as a pedestrian might use the road surface. The Petitioner skates toward the middle of the lane and not on the edge of the road surface because the roadway is better there for the rollerblades. The record in this case does not clarify whether the Petitioner skates with or against the traffic. In connection with the rollerblading, the Respondent believes that the Petitioner is not entitled to use the road as he does and that if the Petitioner did not use his position as a councilman for influence, he would be cited for rollerblading down the road as he does. Further, the Respondent maintains that the Petitioner has made verbal complaints against motorists who passed too close to him. The Respondent maintains that the verbal complaints are false in that the Petitioner is not entitled to use the roadway as he does and therefore cannot complain against motorists as he does. The Petitioner does not deny the activity. The Respondent has observed the Petitioner rollerblading down the road. The Respondent has not issued a citation to the Petitioner because he is assigned an administrative position within the police department and he believes he is not allowed to issue such citations. The Respondent based the allegation regarding this claim upon statements he has heard from police officers within the Town’s police department. The Respondent did not subpoena the officers to the hearing because he did not want to involve other Town employees in the matter. The Respondent does not have any evidence to support the allegation other than what he believed he had been told in his experience as a police officer for the Town. The record does not demonstrate any written record of either the Petitioner being cited for improper rollerblading or making a report against a vehicle. As to the second allegation that was investigated, a memo purportedly from the chief of police was released to a member of the public by accident. It was included within a stack of documents that had been requested by a private citizen. The document stated in part: SUBJECT: Ethics violations and continual interference of day-to-day police operations by the Vice Mayor Iglesias This memorandum is to inform you [Mayor Michael Addicott] of constant harassment of police personnel and interference in daily operations by the new vice mayor. The Petitioner admitted that he was concerned that the document had been released in error and that the person who wrongly released a document should be disciplined. The Petitioner did not know about the document before it was released. He did not attempt to prevent the release of the document. Instead, the Petitioner sought to, after-the-fact find out why the document had been released, if the document was in fact a public record subject to release, and if the employee should be disciplined for the release. The document in question was a public record, was subject to public release, and the employee was not disciplined for its release. Nevertheless, the Petitioner did require a second (and arguably third opinion) regarding whether the document constituted a public record. In the meanwhile, the controversy within the Town over whether the document should have been released was widely discussed among Town employees. The Respondent filed his claim based upon several reports that the Petitioner wanted the secretary who released the report fired. One of the Respondent’s sources was the Chief of Police. The Respondent did not question the veracity of the police chief. At hearing, the Petitioner did not deny that discipline would have been appropriate if the release of the document were shown to be erroneous. The Petitioner acknowledged that the Town pursued a full review of the matter and that he was among those who called for the review. As to the third allegation (that the Petitioner caused his son to be hired by the Town), the Respondent believed that once the Petitioner was elected as a councilman that the son was not eligible to work for the Town. The Respondent thought that rules prohibiting nepotism applied to the Petitioner’s son and that as such the son could not continue to work for the Town. The Respondent based this interpretation on a general but un- researched idea about nepotism. He also discussed this matter with another Town employee who also thought the son was not eligible to work for the Town. In fact, the Petitioner’s son, Joseph, started working for the Town in a part-time position prior to the Petitioner being elected to office. After the Petitioner became Vice Mayor, the son continued with his duties but was moved from an independent contractor status to part-time employee status. The son then received a raise in his hourly rate of pay when the Town employees also received a raise. The Petitioner did not supervise the son’s employment and did not direct the son’s work. The record is unclear as to whether the Petitioner voted on the pay raise or not. At hearing the Respondent maintained that he had had numerous conversations with persons at the Ethics Commission who recommended that he add the information regarding the nepotism claim to his allegations. He admitted that he did not independently check any laws or rules that might pertain to nepotism before filing the claim. Much of the Respondent’s attitude and comments in connection with the Petitioner must be viewed in the context of the happenings within the Town. For unknown reasons, the Town, its employees, and the governing council were in a state of change and confrontation. The Respondent and the Petitioner apparently do not relate well to one another personally. The Respondent is suspicious of the Petitioner’s medical credentials and is uncertain as to why the Petitioner holds himself out as an “M.D.”, when he is not licensed nor is he eligible to be licensed as a medical doctor. The Petitioner believes the Respondent holds some animosity toward him for unknown reasons. Further, because the Respondent admitted he believes the Petitioner is arrogant, that belief somehow that demonstrates malice toward the Petitioner. The questions of whether the Petitioner is credentialed to be a medical doctor, whether the Petitioner attempted to interfere with the police department, or whether the Petitioner spread false rumors regarding the police department were not investigated and do not support, if true, an ethics violation. If attorney's fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney's fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense against the Respondent’s Complaint. The expert merely opined that the invoices he reviewed were reasonable. He maintained that the Petitioner should recover $27,455.53 in this matter.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of June, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026
The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
