The Issue Whether a contract exists for the lease of office space in Shalimar, Florida, between the Department of Corrections (DOC) and International Investment Counsel, Inc. (IIC).
Findings Of Fact On or about May 18, 1998, DOC issued a Request for Proposal (RFP) for Lease No. 700:0792, Shalimar Probation and Parole Office (the Lease). IIC, DOC’s current landlord for the Shalimar Probation and Parole Office, and another bidder, Bonafied Business Associates, Inc. (Bonafied), timely filed responses to the RFP. DOC opened and initially determined both proposals to be responsive to the RFP. Following evaluation of the bids by an evaluation committee, DOC posted its decision to award the lease to IIC. Bonafied timely filed a notice of protest. After Bonafied filed its notice of protest, Bonafied met with DOC and pointed out that IIC’s proposal did not clearly specify 40 exclusive parking spaces required by the RFP. Before the expiration of the 10-day period within which Bonafied was required by statute to file its formal written protest, DOC informally notified Bonafied that it intended to withdraw its award to IIC and repost its intent to award the lease to Bonafied. For logistical reasons, DOC did not communicate to IIC its intent to withdraw its award of the lease on or before July 17, 1998, the deadline for Bonafied to file its formal written protest. Notwithstanding that failure of notice to IIC of DOC’s intent to withdraw the lease award, Bonafied failed to perfect its protest and file a formal written protest by the deadline of July 17, 1998, as required by Section 120.57(3)(b), Florida Statutes. Subsequently, Bonafied rented the office space offered in its bid to another tenant.
Recommendation Based on the foregoing, it is RECOMMENDED: That a Final Order be entered directing Department of Corrections to execute a lease with IIC for the Shalimar Probation and Parole Office consistent with the contract now in force between IIC and the DOC. DONE AND ENTERED this 23rd day of November, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping, Green, Sams and Smith, P.A. STEPHEN F. DEAN 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 23rd day of November, 1998. Post Office Box 6526 Tallahassee, Florida 32314 Scott E. Clodfelter, Esquire Obed Dorceus, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 David Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301-2646 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
The Issue The issues in this proceeding are whether the Petitioner abandoned an employment position with the Florida Parole and Probation Commission, and whether she was properly separated from employment with the Commission based upon abandonment. Petitioner contends that her failure to report for work with the Commission did not constitute an abandonment because the Commission's offer of employment was presented in such a manner as to make it impossible for the Petitioner to appear for work. The Commission contends that the Petitioner failed to report for work with the Commission for three consecutive workdays, that her failure to report was not authorized, and that she therefore abandoned her position with the Commission.
Findings Of Fact Prior to 1980, Petitioner had been employed with the Florida Parole and Probation Commission at its Pensacola office as a Parole Agent. Her employment was terminated, and she pursued a proceeding before the Florida Career Service Commission. The Career Service Commission ordered that the Parole and Probation Commission reinstate her to her former position and that she receive back pay and benefits. The Petitioner had moved to Tallahassee, and the Commission sought to accommodate her by offering her a position in Tallahassee. There were no immediate vacancies. The Petitioner was offered a position as Administrative Assistant to the Chairperson of the Commission. The position was at a lower pay grade than Petitioner had been in, and she declined the position. The Commission considered itself to be under an obligation to place Petitioner in a position similar to the one she had held previously. The 1980 session of the Florida Legislature authorized ten new positions to the Commission. Although the effective date of the authorization was July 1, 1980, the positions were only funded to commence in October, 1980, and to run through the remainder of the fiscal year. The Commission concluded that an emergency existed for filling two of the authorized positions. The Commission decided to take steps to fill a "Parole Examiner I" position and, a "Revocation Specialist" position immediately, rather than to wait until October In order to accommodate the immediate filling of those positions, the filling of other newly authorized positions would be delayed until subsequent to October. The Commission advertised for the Parole Examiner I and Revocation Specialist, positions by Job Opportunity Announcements dated July 7, 1980. The application deadline was July 18, 1980. These were the first professional level vacancies that the Commission had had in its staff other than the Administrative Assistant position since the time that the Career Service Commission ordered that Petitioner be reinstated. Commission personnel commenced to interview qualified applicants after July 18. At some point, consideration was given to offering one or both of the positions to the Petitioner. Commission personnel contacted Petitioner on July 28, 1980, and offered her the Parole Examiner I position. Petitioner was also advised that she could be considered for the Revocation Specialist position, which was at a higher pay grade than the position that Petitioner previously held. A letter confirming this was sent by the Commission to the Petitioner. The letter was dated July 28, 1980. By letter dated August 1, Petitioner stated that she would like to be considered for the Revocation Specialist position. On Wednesday, August 6, 1980, the Commission's Personnel Manager advised Petitioner that she was being offered the Revocation Specialist position and that she would be expected to report to her supervisor the following Monday, August 11, 1980, at 8:00 A.M. A letter confirming the offer and the conditions, dated August 6, 1980, was delivered to Petitioner by hand delivery on August 7. These letters formally confirmed conversations that had taken place among Petitioner and various employees of the Commission. On August 8, 1980, the Petitioner contacted the Commission's Personnel Manager and expressed a desire to take annual leave so that she could report to work in the new position subsequent to August 11. The Personnel Manager informed Petitioner that she would need to make her leave request directly to Harry P. Dodd, the Commission's Revocation Administrator, who would be Petitioner's supervisor. The Petitioner was able to contact Mr. Dodd in Starke, Florida, where he was performing Commission duties. She initially indicated that she would like to take two weeks' annual leave commencing on August 11. During the conversation, she scaled this request down to three days. Mr. Dodd was unclear as to the extent of his authority to grant or deny the leave request. He contacted the Commission's Personnel Manager and legal counsel and was advised that the decision of whether to grant or deny the leave request should be made by Mr. Dodd as a management decision. Mr. Dodd concluded that the leave request should be denied, and he contacted the Petitioner by telephone and advised her of that. Petitioner did not at that time advise Mr. Dodd that she would not report for work on August 11. By letter dated August 8, 1980, Petitioner advised the Chairperson of the Commission that she would not be able to report on August 11. She did not state her intentions to report at any future date. Petitioner did not report for work on August 11, 12, or 13, 1980. By letter dated August 13, the Commission advised Petitioner that it regarded her failure to report on August 11 as a refusal of the position. Thereafter, by letter dated October 15, 1980, the Commission advised Petitioner that if she were considered an employee rather than a prospective employee in view of the Career Service Commission's reinstatement order, that she had been absent without authorized leave for three days, and deemed to have abandoned her position. She was advised of her right to seek review of that decision through a petition to the Department of Administration. Petitioner filed such a petition, and this proceeding ensued. During July and August, 1980, the petitioner was employed on a part- time basis with the Federal Public Defender's Office in Tallahassee. Petitioner did not take any steps to advise anyone at her office as to the possibility of her accepting a position with the Parole and Probation Commission. While Petitioner testified that it would have been appropriate for her to give at least two weeks' notice before leaving the Federal Public Defender's Office, it does not appear from the evidence that her failure to give such notice would have unduly burdened her employer. Furthermore, if Petitioner had immediately advised her employer when she became aware that she may obtain full-time employment with the Commission, adequate notice could have been given. Petitioner and her husband had planned a vacation for August 11 and 12, 1980. While reporting to work on August 11 would have frustrated those plans, it does not appear that Petitioner would have incurred any significant expense or unhappiness from frustration of the vacation plans other than disappointment. It would have been difficult for the Petitioner to make arrangements for day care for her children in order to report for full-time employment with the Commission on August 11. It does not appear that those difficulties were insurmountable, however, and Petitioner could, albeit with difficulty, have made such arrangements. It was not impossible for the Petitioner to report for work with the Commission on August 11, 1980. The Commission's Revocations Section was severely understaffed during the summer of 1980. Legislation had been enacted which dramatically increased the number of parole revocations, and the Commission's staff had not been increased to handle the increase. During July and August, the Revocations Section had a severe backlog. It is for this reason that the Commission decided to take immediate steps to fill a newly authorized Revocation Specialist position. In addition to the increased workload and backlog, the Revocations Section had some peculiar personnel difficulties which increased the need to immediately fill the newly authorized position. One of the Revocation Specialists was seriously ill and frequently absent. Another was scheduled for military leave, which was not discretionary. Mr. Dodd had made plans to be on annual leave which could not be changed because he was using the leave to close a real estate transaction. In view of these difficulties, Mr. Dodd's refusal to grant the Petitioner's annual leave request was justified. It does not appear that the refusal of the leave request was made on any basis other than a sound management decision. After the Petitioner failed to report for work by August 13, the Commission took immediate steps to fill the Revocation Specialist position. While there were unexplained delays in accomplishing that, the position was filled effective August 26, 1980. There is no evidence from which it could be concluded that the Commission's offer of the Revocation Specialist position to the Petitioner was other than a bona fide offer. There is no evidence from which it could be concluded that any of the persons involved in offering the position to Petitioner felt any ill will toward her. The denial of the Petitioner's request that she not be required to report on August 11, as she had been directed, was based on a sound management decision. There is no evidence from which it could be concluded that the denial was generated by any ill feeling toward Petitioner or any desire that she not take the position. Taking the position on such short notice undoubtedly would have caused the Petitioner some inconvenience in leaving the position that she had held with the Federal Public Defender's Office and arranging child care. The frustration of vacation plans would have been disappointing. These factors do not, however, justify the Petitioner's failure to report as directed, nor could it be concluded that it was impossible for the Petitioner to report as directed. In view of the fact that the petitioner was offered the Revocation Specialist position in order that the Commission could comply with its responsibility to reinstate the Petitioner and the fact that the Petitioner was receiving back pay from the Commission, the Petitioner should be viewed as having been employed by the Commission. Her failure to report for work for three consecutive days as she had been directed to do constitutes an abandonment of her position with the Commission.
Findings Of Fact The Petitioner is presently incarcerated at Sumter Correctional Institution near Bushnell, Florida. Sumter Correctional Institution is a prison maintained by the Florida Department of Corrections. Petitioner was convicted for two separate robbery offenses based upon guilty pleas. He was sentenced to a prison term of ten years in connection with each conviction, the sentences to run concurrently. Petitioner is presently incarcerated based upon these convictions. Petitioner was interviewed by an Examiner of the Florida Parole and Probation Commission for the purpose of establishing a recommended presumptive parole release date on February 26, 1981. Under rules of the Parole and Probation Commission then in effect, the Examiner was to consider the gravity of the offense for which the Petitioner was sentenced, establish a "salient factor score" and consider any aggravating or mitigating circumstances. The Examiner classified the offense as "high-robbery" and set the salient factor score at "1." Under Commission rules then in effect, the guidelines for a time range ("matrix time range") for that offense characteristic and salient factor score was fourteen to nineteen months. The Examiner recommended setting the presumptive parole release date at the longest period within the time range (nineteen months) and additionally recommended that several aggravating circumstances be considered. These circumstances were the existence of a concurrent sentence for robbery for which the Examiner recommended an additional nineteen months, the fact that a gun was used in one of the robberies for which the Examiner recommended an additional six months, and the fact that a knife was used in the other for which the Examiner recommended an additional six months. The Examiner thus recommended that the Petitioner serve a total of fifty months in prison and that his presumptive parole release date be set at March 13, 1984. Petitioner requested review of this recommendation before the Parole and Probation Commission. The Commission took final action on the review request on April 1, 1981, and affirmed the recommendation. Commission Rule 23-19.01(5), Florida Administrative Code, has been amended since it was applied to the Petitioner. The rule as it existed when the Petitioner's presumptive parole release date was established provided: If present offense of conviction involved multiple separate offenses, the severity level shall be based on the most serious of the offenses, and the other offenses may be used as aggravating factors. This shall be applied to both consecutive and con- current sentences. This rule continues to substantially affect Petitioner since it provided the basis for the setting of his presumptive parole release date. In adopting this rule, the Commission sought to develop criteria to predict the likelihood of successful parole. The presence of multiple sentences for multiple criminal behavior was considered an important factor in determining the likelihood of a successful parole experience.
The Issue Whether Petitioner's application for licensure as a yacht salesperson should be granted.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a 47-year old resident of Hollywood, Florida. He is married and has a five-year old step-daughter. His wife's father is the minister of the First Methodist Church in Hollywood. Petitioner is an active member of his father-in-law's church. In recent years, he has volunteered a significant amount of his time to perform tasks on behalf of the church. Petitioner is now, and has been since June of 1997, employed as a salesperson by Rex Yacht Sales (Rex) in Fort Lauderdale. As a salesperson for Rex, he sells new boats and he also sells used boats that are 32 feet or less in length.3 Approximately, 75 percent of the sales he makes are of used boats. Petitioner specializes in the sale of sailboats. He possesses a considerable amount of knowledge concerning sailboats as a result of the years (since he was a young child) that he has devoted to sailing. Petitioner owned, lived aboard, and captained a sailboat named the "Wave Dancer" from 1975 until the late 1980's. He acquired the "Wave Dancer" in return for his participation in an illicit drug smuggling operation. In 1975, when he was still living in his hometown of Port Washington, New York, Petitioner was approached by a childhood friend, Dan Locastro. Locastro advised Petitioner that he (Locastro) and his associates wanted to buy a sailboat to use to transport marijuana from St. Thomas in the Virgin Islands to the New England coast. Locastro promised Petitioner that, if Petitioner were able locate a sailboat for them to purchase and if he thereafter successfully captained the newly purchased sailboat on its journey to and from the Virgin Islands, Petitioner could keep the sailboat. Approximately a month later, Petitioner notified Locastro that he had located a sailboat for Locastro and his associates. The sailboat was the "Wave Dancer." Locastro and his associates subsequently purchased the "Wave Dancer." They purchased the boat in the name of Richard Harrison. Following the purchase of the "Wave Dancer," Petitioner, accompanied by Locastro, sailed the boat to an island near St. Thomas. There, 500 pounds of marijuana were loaded onto the "Wave Dancer." Petitioner then sailed the boat to the New England coast, where he delivered the marijuana. Petitioner participated in this illicit smuggling operation because he wanted his own sailboat. He was neither arrested, nor charged, for having participated in this operation. As promised, Petitioner was allowed by Locastro and his associates to keep the "Wave Dancer" after the conclusion of operation. The boat was subsequently titled in Petitioner's name. For approximately 12 or 13 years, Petitioner (who was then single) lived in the Caribbean aboard the "Wave Dancer." He earned a living by taking tourists (usually one couple at a time) out in the water on his boat. In the late 1980's, Petitioner decided to return to the United States to live with and care for his parents, who, because of their advanced age, required his assistance. Before moving back to the United States, Petitioner put the "Wave Runner" up for sale. He was unsuccessful in his efforts to sell the boat. He discussed with a friend of his, Ken Fish, the possibility of Fish purchasing the boat for $50,000.00, but no sale was consummated. Petitioner was still the owner the "Wave Runner" when he flew to the United States and moved in with his parents (in their home). He left the "Wave Runner" behind in the Virgin Islands in the care of his friend Fish. Approximately nine months after he left the Virgin Islands, Petitioner received a telephone call from Fish, who indicated that he was having financial difficulty and that he wanted to use the "Wave Runner" in a "marijuana scheme." Approximately six months later, Fish again telephoned Petitioner. This time he told Petitioner that he wanted "to do a cocaine smuggling venture with [the "Wave Runner]." At first, Petitioner told Fish that he (Fish) was "out of his mind." Later during the conversation, however, Petitioner relented and agreed to allow Fish to use the "Wave Runner" in the proposed "cocaine smuggling venture." Petitioner gave his permission without receiving any promise from Fish that he (Petitioner) would receive anything in return. The "cocaine smuggling venture" was unsuccessful. The "Wave Runner" was seized by authorities in Martinique. In the spring of 1991, in United States District Court for the Southern District of Florida Case No. 91-349-CR- HIGHSMITH, Petitioner was criminally charged by the United States government for his role in the "cocaine smuggling venture" with conspiracy to import cocaine into the United States. Petitioner's role in the "cocaine smuggling venture" was limited to permitting Fish to use the "Wave Runner" to transport cocaine into the United States. After his arrest in May of 1991, Petitioner agreed to, and he subsequently did, cooperate with federal authorities by participating in federal undercover drug enforcement operations under the supervision of federal agents. At times during these operations, he was required to place himself in situations where his personal safety was compromised. In or around January of 1994, pursuant to a plea agreement, Petitioner entered a plea of guilty in United States District Court for the Southern District of Florida Case No. 91- 349-CR-HIGHSMITH to one count of conspiracy to import cocaine. On January 30, 1995, Petitioner was adjudicated guilty of said crime and, as punishment, placed on probation for five years and fined $17,500.00. Such punishment constituted a substantial downward departure from the range provided in the United States Sentencing Guidelines. At the sentencing hearing, the sentencing judge explained that he was "constrained to substantially modify the sentence in this case downward" because of the risks Petitioner had taken to assist federal authorities in their drug-fighting efforts. Although under no legal obligation to do so, Petitioner continued to provide similar assistance to federal authorities (at a substantial personal risk) after his sentencing. In September of 1996, Petitioner filed with the Department an application for licensure as a yacht salesperson. Question 13 on the application form read as follows: CRIMINAL HISTORY: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the law 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. Yes No The application form instructed those applicants whose answer to Question 13 was "Yes" to "attach [their] 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 [were] pending." On the application form that he submitted to the Department, Petitioner answered "Yes" to Question 13, but he did not attach the required signed statement. He merely appended to the application form a copy of the judgment entered in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On or about October 1, 1996, the Department sent the following letter to Petitioner: The Department of Business and Professional Regulation, Section of General Regulation is in receipt of your application for a yacht Salesman. A review of your application has disclosed the following deficiencies: You answered Yes to question 13 which asked "Have you been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld?" The paragraph under question 15 further states "If your answer to question 13, 14, 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." You will need to submit a signed statement of the charges and facts, within twenty-one (21) days to this office before your application can be checked for form. Should you have any questions, please contact me. After receiving the Department's October 1, 1996, letter, Petitioner telephonically requested additional time to respond. By letter dated December 13, 1996, Petitioner's attorney, John J. Lynch, Esquire, responded on Petitioner's behalf to the Department's October 1, 1996, letter. Lynch's letter, which was received by the Department on December 17, 1996, read as follows: I represent the Applicant, Richard E. Parker. In response to concerns raised by Richard Parker's application's disclosure of charges and crimes and the results thereof, please consider the following as part of the application process: The subject matter was limited to involvement in a conspiracy to import controlled substances. Mr. Parker voluntarily entered a guilty plea in the U.S. District Court, Southern District of Florida, Miami, Florida, in an action entitled, "United States v. Richard Parker" Criminal No. 91-349-CR- Highsmith. Upon being aware of potential liability, he cooperated fully with the U.S. Government. During a four-year period, he provided extensive assistance to the U.S. Government in ongoing investigations and provided training and resources to special agents. Mr. Parker's participation as a Government agent put him at considerable risk. His case remains under court seal to protect information which may be used by the Government in future criminal prosecutions. I cannot provide a complete transcript of the court proceedings without jeopardizing Mr. Parker's safety. To appreciate Mr. Parker's significant assistance to the U.S. Government, a portion of the Honorable Judge Highsmith's sentencing comments has been enclosed. Pages 11, 12, 14 and 15 of the sentencing memorandum specify the efforts made by Mr. Parker, and recognized by the Court to rectify his prior conduct. (Note: All individuals, other than Mr. Parker, have been redacted to preserve a measure of safety since the matter remains under court seal). In recognition of [his] assistance, Mr. Parker was placed on probation for five years and fined on January 30, 1995. The fine was paid and probation has commenced. I trust this supplemental response answers concerns regarding this unfortunate episode in Mr. Parker's life. As his attorney asserted in the foregoing letter, as of the date of the letter, Petitioner had paid the $17,500.00 fine imposed in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On January 17, 1997, the Department issued its Notice of Intent to deny Petitioner's application for licensure. On February 12, 1997, Petitioner requested a Section 120.57(1) hearing on the matter. On August 12, 1997, Petitioner filed a motion in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH requesting that "his period of probation [be reduced] from a term of 60 months to a term of 32 months thereby terminating his probation on September 30, 1997." In support of his motion, he stated the following: On January 30, 1995, Richard Parker was sentenced by this Court to five years probation for his participation in a cocaine conspiracy. The Court imposed this lenient sentence because of the extraordinary cooperation Richard Parker had rendered (a transcript of the sentencing is attached hereto as Exhibit A). As part of his cooperation Parker had gone to Columbia in a sailboat, at great personal risk and with no protection from law enforcement, and developed a case involving significant arrests, convictions, and seizure of cocaine. Since sentencing Parker has remarried and complied with all terms of probation. Parker had promised the agents and the Court that his cooperation would continue regardless of the sentence imposed by the Court. True to his word, following sentencing, at the request of the DEA, Richard Parker traveled alone to Columbia and negotiated the location in the Caribbean Sea for an air drop of 300 kilos of cocaine. Parker then captained a sailboat and traveled to Dominica and Barbados, St. Kitts and the British Virgin Islands with DEA agents on board and participated in the recovery of the 300 kilos of cocaine as it was dropped from a plane in 50 kilogram packages. Parker received no payment for this cooperation. Parker rendered substantial assistance to the Government after sentencing because of his moral commitment to cooperation as a form of restitution, because of his sense of obligation and gratitude, and because he had given his word to the Government and this Court. It is now over 2 1/2 years since Parker was sentenced. Parker has complied fully with all conditions of probation. Parker has committed himself to building a productive law-abiding life. The Count may well recall that Parker's marriage ended during his cooperation and sentence. Parker has recently married again becoming the father of a four-year old in the process. Parker has spent his life working on and sailing boats. Parker has applied to the State of Florida for a license to be a yacht salesman. The issuance of these licenses in Florida is regulated by the Department of Business and Professional Regulation (DBPR). The DBPR has denied Parker's request for a license citing Parker's conviction as irrefutable proof of moral turpitude as a basis for denial. Parker has petitioned for review and a hearing before an administrative law judge is scheduled for October 14, 1997. Undersigned counsel has been advised that the hearing scheduled for October 14, 1997, will be the final hearing regarding Parker's petition for a license to sell boats in the State of Florida. Regarding this issue, undersigned counsel has become aware of an administrative decision where an application for a license as a yacht and ship salesman was granted by DBPR to an applicant who had been convicted of a drug felony, sentenced to probation and had been terminated from probation. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes v. Orr, Docket No. YS95025 (Final Order No. BPR-95-03991, 7/20/95). It is respectfully submitted that evidence of successful completion of probation by Parker prior to the time of final hearing on October 14, 1997, will either result in the DBPR rescinding their denial of Parker's application or a reversal of DBPR's denial by the administrative law judge. Assistant United States Attorney John Schlessinger has conferred with the United States Probation Officer Anthony Gagliardi regarding this motion and has authorized undersigned counsel to state that the United States has no objection to a reduction of probation from 60 months to 36 months. Richard Parker has applied to the State of Florida for a yacht salesman license so that he can support himself and his family. Richard Parker, through his cooperation, has rebutted any presumption of moral turpitude that attached to his conviction and has affirmatively and courageously demonstrated good moral character; Richard Parker has honored and will continue to honor his pledge to the United States and to this Honorable Court never to break the law again. . . . The Final Order in the Orr case, which was referenced in Petitioner's Motion to Modify Probation, contained the following "findings of fact" and "conclusions of law":
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Petitioner's application for licensure as a yacht salesperson. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1997.
The Issue Did Respondent violate the provisions of Section 817.567, Florida Statutes (2004), or any lesser included offenses, Section 943.1395(6) and/or (7), Florida Statutes (2004), and Florida Administrative Code Rule 11B-27.0011(4)(b) and/or (c), by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes (2004), requiring maintenance of good moral character?
Findings Of Fact Undisputed Facts: Respondent was certified by the Criminal Justice Standards and Training Commission on September 5, 1995, and was issued Correctional Certificate Number 157626. Additional Facts: Petitioner's Exhibit numbered A11 is a copy of an interoffice memorandum from Respondent to the "Personnel Dept." This reference to the personnel department is taken to refer to the Florida Department of Corrections, in view of other proof in this record. The interoffice memorandum goes on to describe as the subject "transcript and diploma." The interoffice memorandum says "I have enclosed a copy of my diploma and transcript. Please place these in my personnel file and update my records and incentive. Thank you, W.S.D." The exhibit reflects in a handwritten note of unknown origins, "This diploma & transcript are ineligible for CJIP because this is not an accredited college." Nothing else in this record describes the nature of the transcript and diploma referred to in the interoffice memorandum concerning the particulars of the transcript and diploma that was mentioned on January 31, 1999, nor can it be reasonably inferred. As evidenced by Petitioner's Exhibit numbered A15, Respondent prepared and signed an employment application with the Florida Department of Corrections for the position of Correctional Probation Officer on June 14, 2004. In the course of this application Respondent listed under the section related to college university or professional school "Southern Mississippi" at "Hattiesburg, Mississippi", which he allegedly attended from August 1996 through August 2003, participating in a course of study referred to as "Criminal Justice" at which, according to the application, he earned an M.S. degree. In fact Respondent had never attended the University of Southern Mississippi as explained in correspondence dated July 6, 2004, from Greg Pierce, University Registrar at the University of Southern Mississippi directed to Terry Foskey, a payroll specialist with the Department of Corrections, Region I Service Center, who had inquired of the University of Southern Mississippi concerning Respondent's status as a student. This correspondence is Petitioner's Exhibit numbered A9. Moreover, a transcript, Petitioner's Exhibit numbered A3, which Mr. Foskey had supplied a verification specialist in the registrar's office at the University of Southern Mississippi, Trudy Stewart or Steward, was found not to resemble a transcript from that university, as explained by Mr. Pierce in his correspondence. The transcript, Petitioner's Exhibit numbered A3, had been received by Mr. Foskey on June 28, 2004. Mr. Foskey was uncertain of the information contained in the transcript. This led to his inquiry to the University of Southern Mississippi, with the determination being made that the transcript did not come from that university. While Mr. Foskey was attempting to clarify the status of the transcript with the University of Southern Mississippi, he was contacted by Respondent who asked if Mr. Foskey had received the transcript. Mr. Foskey replied that he had and asked what Respondent wanted done with that transcript. Respondent answered that he had pulled up information on a program known as ATMS, which the Florida Department of Law Enforcement uses to track certified officers, Respondent among them. As a result Respondent said that he needed this document, meaning the transcript, entered into the ATMS because he was transferring from his present position into another position he referred to as security. There was a series of e-mails as reflected in Petitioner's Exhibit numbered A8 from Respondent to Mr. Foskey. The first was on July 1, 2004. It says "Per telephone call, please place information in ATMS 2 and in my personnel file Thanks." Then the name and position of Respondent as Classification Officer at Santa Rosa CI-119 is provided. On that same date another e-mail was dispatched from Mr. Foskey back to Respondent which said "Thank you for the follow-up." As reflected in the exhibit, on July 7, 2004, Respondent sent an e- mail to Mr. Foskey, with the subject line being "Re: Transcript," which said in its text, "Mr. Foskey, how long does it take for the information to be entered into ATMS 2?" The change in employment position by Respondent that was being described for Mr. Foskey related to the application, Petitioner's Exhibit numbered A15. Pertinent to this inquiry, the Correctional Probation Officer job being sought by Respondent required a bachelor's degree level of education as a prerequisite to filling the position. The reference made by Respondent to the M.S. degree from University of Southern Mississippi is perceived as Respondent's attempt to show that he had the necessary level of education to apply for the job. In relation to his pursuit of the Correctional Probation Officer position, on June 8, 2004, Respondent had filed a request for demotion with the Regional I Service Center Department of Corrections for personal reasons, requesting permission to move from his position of Senior Classification Officer to that of Correctional Probation Officer. This is reflected in Petitioner's Exhibit numbered A15A. As a result of the incident concerning the purported transcript from the University of Southern Mississippi, the Department of Corrections, Office of the Inspector General investigated. That investigation was conducted by David Ellis. In a discussion between Mr. Ellis and Respondent concerning the subject transcript, Respondent acknowledged that he had the documentation sent to personnel, taken to mean the personnel office with the Department of Corrections. Respondent told Mr. Ellis that he had requested that the transcript be sent to personnel and had supplied information to a company to have it sent. Respondent did not remember the name of the company, as he explained to Mr. Ellis. Respondent told Mr. Ellis that he had read a personnel memorandum on the Department of Corrections website about a university in southern Florida that would accept life experience for college credits and that he, meaning Respondent, searched the web and found that the University of Southern Mississippi did likewise. The memorandum about the university in southern Florida, refers to Florida Southern College, and is found to be that as reflected in Respondent's Exhibit numbered A5. Respondent then sent an e-mail to the internet company requesting information about college degrees. The company sent him a package explaining the process and he sent something back about his life experiences, with a check of $800.00 and a list of other college credits earned elsewhere. Respondent told Mr. Ellis that he then received the subject transcript at his home from the University of Southern Mississippi on a later date. This is found to be as arranged through the internet company. The transcript that he received at home, Respondent compared to the one that had been received by Mr. Foskey and Respondent told Mr. Ellis they were the same with the exception that his transcript copy had a seal in the middle. Respondent acknowledged to Mr. Ellis that he had not taken any of the courses on the transcript that has been described and had not earned any grades for any of those courses reflected on the transcript. When Mr. Ellis asked Respondent why he would send something to personnel that he had never officially done, Respondent replied because he thought it was all right. Mr. Ellis asked Respondent to give him information about the internet company that Respondent had referred to and any information regarding payment to that company by Respondent. Respondent called Mr. Ellis back and told him that the name of the company was CustomDegrees.com. It is found that Respondent's Exhibit numbered 4 is information from CustomDegrees.com that Respondent relied on. Nothing about this information from CustomDegrees.com provided to Respondent, and for which Respondent paid a service fee, could reasonably be interpreted to serve as the functional equivalent of having earned the degree from the University of Southern Mississippi for which Respondent intended to take credit. Petitioner's Exhibit numbered A3A constitutes a handwritten educational history which Respondent provided to CustomDegrees.com for them to provide the degree which was falsely portrayed as having been issued by the University of Southern Mississippi.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations of the Statutes and Rules referred to and suspending Respondent's Correctional Certificate Number 157626 for 60 days. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 12th day of April, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. John Westberry, Esquire Holt & Westberry, P.A. 1308-B Dunmire Street Pensacola, Florida 32504 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
