The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. him. If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since December 7, 1990, certified by the Commission as a law enforcement officer. He holds law enforcement certificate number 86138. At the time of the incidents alleged in the Administrative Complaint, Respondent was employed as a trooper with the Florida Highway Patrol (FHP), a position he held from 1990 until his dismissal on January 31, 1997. In September of 1994, Respondent's law enforcement career was temporarily interrupted when he was shot in the face and seriously injured while responding to another law enforcement officer's call for assistance. Respondent was off-duty at the time of the incident. After a lengthy hospital stay and recovery period, Respondent returned to duty, rather than seek disability compensation. For the duration of his employment as a trooper with the FHP, Respondent was assigned to Troop L and headquartered in Pahokee, Florida. From November of 1993 until his termination in 1997, Respondent was a member of Sergeant Steven Veltry's squad and under Sergeant Veltry's immediate supervision. Respondent and Sergeant Veltry's relationship was a contentious one. Respondent frequently complained to Sergeant Veltry's superiors that Sergeant Veltry was treating him unfairly. Respondent's complaints, however, were not resolved to his satisfaction. In fact, it seemed to him that his complaints made his situation even worse. As a trooper, Respondent was authorized, pursuant to the written policies and procedures of the FHP, to issue citations, as well as written warnings and faulty equipment notices. He also gave verbal warnings to motorists. (The FHP's written policies and procedures do not specifically address the issuance of verbal warnings.) The issuance of a citation has the potential of adversely impacting the cited motorist. A motorist suffers no adverse consequences, however, as a result of receiving a verbal or written warning or a faulty equipment notice. Unlike traffic citations, written warnings and faulty equipment notices are not required to be signed by the motorists to whom they are issued. Like traffic citations, written warnings and faulty equipment notices are issued in triplicate. One copy (the white copy) is given to the motorist, another (the yellow copy) is retained by the trooper, and the remaining copy (the pink copy) is turned in to the trooper's supervisor along with the trooper's Weekly Report. The Weekly Report prepared and submitted by the trooper is a report of the trooper's enforcement activities for the week. Included in the report is the number of written warnings and faulty equipment notices issued by the trooper. After they are received by the trooper's supervisor, the trooper's Weekly Report and attachments (including the pink copies of the written warnings and faulty equipment notices the trooper issued during the week) are transmitted to the district office, where the report is reviewed for accuracy by, among other things, comparing the number of written warnings and faulty equipment notices reported by the trooper in the report against the number of pink written warnings and faulty equipment notices accompanying the report. Following the completion of such a review, the trooper's Weekly Report (without the pink written warnings and faulty equipment notices, which are kept by the district office for approximately six months and then destroyed) is sent to headquarters in Tallahassee, where it is used for statistical purposes. The FHP makes decisions regarding the utilization of its resources based, at least in part, upon the information contained in the Weekly Reports submitted by its troopers. There is no minimum number of written warnings and faulty equipment notices a trooper must issue each month. Furthermore, the compensation a trooper receives is not based upon the number of such warnings and notices he or she issues. That is not to say, however, that a trooper, particularly one who is constantly at odds with his immediate supervisor concerning his work performance, would have no reason or motive under any circumstances to overstate, in the trooper's Weekly Report, the number of these warnings and notices that were issued during the reporting period and to thereby lead those in the chain of command to believe that he was more productive, in terms of his enforcement activities, than he actually was during the reporting period. With the intent to deceive his supervisors regarding the extent of his enforcement activities and to obtain the benefit of having his supervisors believe that he had engaged in such activities to a greater extent than he actually had, Respondent submitted to Sergeant Veltry four written warnings and faulty equipment notices that he prepared, but which he never gave to the motorists named in these warnings and notices: Robert Cummings, Paul Decker, Sharon Ciriago, and Armando Valverde. All four of these motorists were stopped by Respondent and issued traffic citations, but, contrary to what the paperwork Respondent submitted to Sergeant Veltry reflected, they never received any written warning or faulty equipment notice from Respondent in addition to the citations that they were given. Robert Cummings was stopped by Respondent on April 24, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (for "no stop lights") he purportedly gave Cummings during this April 24, 1996, stop. In fact, Respondent never gave Cummings such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Cummings the subjects referenced in the warning and notice. Paul Decker was stopped by Respondent on June 8, 1996, at 6:23 p.m. Decker had been exceeding the posted speed limit. Respondent verbally warned Decker to slow down, but did not issue him a citation for speeding. He did issue Decker a citation for a safety belt violation. In addition to a copy of this citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "exceed[ing] speed") and faulty equipment notice (for "headlights") he purportedly gave Decker during this June 8, 1996, stop. In fact, Respondent never gave Decker such a written warning; nor did he, at any time during the stop, give Decker a faulty equipment notice or even mention that there was anything wrong with the headlights on the vehicle Decker was driving. Sharon Ciriago was stopped by Respondent on June 16, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "following too closely") and faulty equipment notice (concerning Ciriago's driver's license) he purportedly gave Ciriago during this June 16, 1996, stop. In fact, Respondent never gave Ciriago such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Ciriago the subjects referenced in the warning and notice. Armando Valverde was stopped by Respondent on July 5, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (concerning Valverde's driver's license) he purportedly gave Valverde during this July 5, 1996, stop. In fact, Respondent never gave Valverde such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Valverde the subjects referenced in the warning and notice. Following an internal investigation that had been initiated at the request of Lieutenant Roy Rogers, one of Sergeant's Veltry's superiors, the FHP's Bureau of Investigations concluded that Respondent, "between April 1996 and July 1996, falsified Warning notices and Faulty Equipment notices." Respondent was dismissed from his position as a trooper based upon the findings of the internal investigation. Since March of 1997, Respondent has been employed as a patrolman by the Palm Beach Sheriff's Office. According to person who hired him, Deputy Sheriff Arthur Owens, the Palm Beach Sheriff's Office's Assistant Director of Law Enforcement, Respondent has been "an exemplary employee."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a law enforcement officer as punishment therefor. DONE AND ENTERED this 10th day of July, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
Findings Of Fact Petitioner John L. Lynch is and has been since June 1, 1970 a Trooper in the Florida Highway Patrol, a division in the Department of Highway Safety and Motor Vehicles. During his service he had previously received "satisfactory" annual ratings until September 1, 1979 and a special evaluation on September 15, 1979, when he was evaluated "conditional." On October 25, 1979 Petitioner Lynch filed a grievance alleging that the conditional performance ratings were based on facts other than job performance. The Grievance Committee found there was reason to question the justification for ratings in certain categories, but recommended that the grievance be denied and a copy its report together with the disputed evaluations be placed in Petitioner's personnel file. The Executive Director adopted the recommendation of the Committee but cautioned Petitioner's supervisors to reflect an accurate and properly justified evaluation of his job performance. Petitioner requested an administrative hearing, which request was transmitted by Respondent to the Division of Administrative Hearings. Subsequent to the forwarding of Petitioner's request for a hearing, Respondent filed a Motion to Dismiss on grounds that the request for an administrative hearing was premature. Petitioner Lynch filed a Response, and after oral argument the Hearing Officer denied the Motion to Dismiss. It was concluded that the determination by the agency head that the disputed evaluations were not based upon factors other than job performance was an order subject to an administrative hearing and was not an allegation that the Respondent agency failed to comply with the rules and regulations which would have required the employee to first file a grievance with the State Personnel Director if dissatisfied with the agency head's decision. Prior to hearing the parties filed a Stipulation (Joint Exhibit No. 1) indicating a factual dispute as to allegations contained in Paragraphs 3 and 4 of Petitioner's "Petition for a Section 120.57 Administrative Hearing." The Stipulation also requested the Hearing Officer to make a determination of certain legal issues. On July 5, 1979 Petitioner Lynch, a Trooper I with the Division of Highway Patrol, Department of Highway Safety and Motor Vehicles, was evaluated by his supervisor, Sergeant W. F. Hinson, on the Employee Performance Evaluation and given a "conditional" rating for the period September 1, 1978 to September 1, 1979. He was again evaluated "conditional" in a special evaluation on September 15, 1979. Petitioner then filed a grievance pursuant to Rule 22A- 10.04, Florida Administrative Code and a three-member Employee Improvement Committee was appointed pursuant to Rule 22A-10.04(4)1, which heard the grievance on December 5, 1979. The Committee filed its report dated December 31, 1979 with the Executive Director, the agency head, recommending that the grievance be denied "since the Committee was presented with insufficient evidence to support the allegation that the evaluations were based on factors other than performance." The Executive Director adopted the report and denied the grievance but stated since the Committee found reason to question the justification for ratings in certain categories, a copy of the Committee report will be affixed to both evaluation reports and placed in Petitioner's personnel file (Joint Exhibit No. 2). The Committee Chairman, who prepared the report, testified at the hearing and supported the report (Transcript, pages 145-148). The Committee had found reasons to question the justification of ratings in certain categories but did not change the evaluation of Petitioner inasmuch as the Committee members had understood from a previous matter that it was not the duty of the Committee to change evaluations (Transcript, pages 151-154). The Committee also felt it lacked competence to evaluate the "area of 'attitude' and things of that nature" (Transcript, page 158). Prior to the subject evaluations of Petitioner Lynch, a petition signed by fourteen (14) wrecker companies was filed with Sergeant W. J. Hinson alleging favoritism and irregularities in the procedures of the wrecker services rotation in the district serving Ocala, Florida. Both Petitioner and Sergeant Hinson work in that district, and Sergeant Hinson is responsible for the regulation and use of the wrecker companies. On June 13, 1979 a meeting was conducted to hear the wrecker companies' grievances. On June 15, 16, 17 and 18, 1979 Sergeant Hinson surveilled Petitioner on the midnight shift in an unmarked car. On June 19, 1979 Petitioner was charged with numerous violations of rules, regulations, policies and statutory laws by Sergeant Hinson and was recommended for suspension and dismissal. Petitioner Lynch was thereafter suspended for sixteen (16) hours without pay. The suspension was not at issue in this administrative hearing, having been resolved under the agreement between the State of Florida and the Florida Police Benevolent Association, Inc., and no further facts concerning that incident were adduced at the hearing. On July 5, 1979 Petitioner was evaluated as "conditional" and was also evaluated as "conditional" on September 15, 1979. He believes that his "conditional" rating was a result of the filing of the wrecker companies' complaint. The Report on Petitioner's Grievance heard December 5, 1979 noted the Complaint of the wrecker service operators, and found that Petitioner is a friend of the complainant wrecker operator and Sergeant Hinson is a friend of the wrecker operator who was accused of receiving more than his share of the wrecker business from the roadways of the Ocala area. The Grievance Committee discussed the fact that Petitioner Lynch felt his "conditional" ratings by his supervisor, Sergeant Hinson, did not evaluate his job performance but reflected Hinson's suspicions that Petitioner supplied information to the wrecker complainant and encouraged the complainant to file the aforementioned petition. The Committee reviewed the Employee Performance Evaluation of Petitioner and the factors of appearance, attendance, job knowledge, work quality, work quantity, initiative, dependability, attitude, and relationship with others. It found that the ratings on job knowledge, work quality, work quantity and initiative to be questionable. At the administrative hearing the Chairman of the three-member Grievance Committee which reviewed the grievance filed by Petitioner Lynch supported the report of the Committee and stated he felt from his own review that the "conditional" evaluations were fair. Sergeant Hinson, witness for Respondent, who rated Petitioner, had counseled him prior to the rating as to his appearance factor, attendance, work quantity, activity reports and other work-related matters. Captain Hodges, who sat in on and reviewed the first rating and reviewed the second rating, had no reason to doubt the truthfulness of any of the ratings given Petitioner. The Corporal, who helped with the evaluations, worked with Petitioner and had supervised him for eight years felt he heeded supervision or would begin to make mistakes." Petitioner was not present at the time he was rated by the Sergeant and Corporal (Transcript, page 250). After a review of the evidence filed in this case including the Stipulation, a copy of which is attached hereto and made a part hereof, and after listening to the witnesses for both parties and studying the legal documents, the Hearing Officer finds that the factors on the Employee Performance Evaluation are largely "subjective" as opposed to "objective". The bias or motivation of a supervisor who rates an employee on appearance, attitude, initiative, and relationship with others is difficult and often impossible to assess, and the rating of the same employee during the same period but by two supervisors may be inconsistent depending upon the values, education, and cultural background of the person responsible for the rating. Ratings for job knowledge, work quality and work quantity also depend on the education, knowledge and expectations of those who rate and review the Employee Performance Evaluation. There was conflicting evidence presented to the Grievance Committee and at the subject hearing on the ratings given Petitioner for job knowledge, work quality, initiative and dependability, but this was insufficient to require a recommendation by the Hearing Officer to change the evaluation made by Petitioner's immediate supervisor. The Grievance Committee had properly reached the same conclusion. The evidence to substantiate the rating given Petitioner Lynch was in the area of attendance; ascertainable appearance such as smoking, need for a haircut and the wearing of a hat; the number of accidents or road incidents reported; and the adherence to established work practices in the district. The Hearing Officer finds, as the Grievance Committee had previously found and the varying opinions of the numerous witnesses substantiated, that the findings of one supervisor as to many of the rating factors on the evaluation are so personal that a rating by another supervisor may be dramatically different. Witnesses made such statements that they could not "second guess" a supervisor, could not "look into his skull," or were not competent to judge "attitude." Sufficient evidence was produced to substantiate the rating of the supervisor on the evaluation factors that are mainly "objective." As for the "subjective" factors the fact that the "conditional" evaluation came in a time sequence that could have indicated an unlawful motive or biased judgment was insufficient evidence to find that the evaluation was a result of unlawful motivation. In summary, there is insufficient evidence to support the allegation of Petitioner Lynch that his "conditional" evaluations were based on factors other than job performance. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Employee Performance Evaluation of Petitioner John L. Lynch for September 1, 1978 to September 1, 1979 and for September 15, 1979 be affirmed inasmuch as there is insufficient evidence to show that factors other than job performance entered into his rating on said evaluations. It is also recommended that the Grievance Committee's Report and the final order of the agency head be affirmed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of September, 1980. COPIES FURNISHED: Enoch J. Whitney, Esq. Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32301 Gene "Hal" Johnson, Esq. Florida Police Benevolent Association, Inc. 216 South Adams Street Tallahassee, FL 32301 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1980.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the administrative complaint, Respondent has been certified by the Commission as a law enforcement officer, certificate No. 02- 34512. In April, 1987, Respondent was employed by the Florida Highway Patrol (FHP) in Dade County, Florida. On the morning of April 9, 1987, at approximately 7:00 a.m., while dressed in his FHP uniform, Respondent went to the home of his girl friend, Connie Hawkins. Unable to waken Ms. Hawkins by knocking at the door, Respondent went around to her bedroom, began to bang on the glass, and attempted to pry open the window. As a result, the window broke and Ms. Hawkins was awakened by the noise. Respondent then demanded that Ms. Hawkins open the door since he had cut his left arm on the broken window. When Ms. Hawkins opened the door, Respondent began to strike her about the face and arm. Apparently, Respondent was angry that Ms. Hawkins had not opened the door earlier and felt she had caused the injury to his arm. This injury, a two inch cut on the left arm, was bleeding rather badly. Respondent went to Ms. Hawkins' bathroom and wrapped a hand towel around the wound in order to apply pressure and stop the bleeding. Subsequently, Respondent left the Hawkins' home in his FHP vehicle. After she was sure Respondent was gone, Ms. Hawkins telephoned the Metro-Dade police to report the incident. She did not want to have the Respondent criminally prosecuted, but she did want to take measures to assure he would not attack her again. After giving a statement to the police, Ms. Hawkins went to an area hospital for examination and treatment of her swollen face and bruised arm. She was required to wear a sling on the injured arm for a couple of days. The Metro-Dade police notified the FHP that one of its employees, Respondent, had been named in connection with a domestic disturbance. The report of the incident was given to Lt. Miller, the FHP supervisor on duty the morning of April 9, 1987. Coincidentally, that same morning at approximately 7:30 am., Lt. Miller had observed a cut on Respondent's left arm and had ordered him to a hospital for stitches. According to the story Respondent gave Lt. Miller, the injury had been caused by the FHP car door when Respondent was entering it after a routine highway stop. A sharp piece of the window framing had allegedly snagged Respondent's arm causing the cut. According to the Respondent, the piece of metal framing may have fallen off the car since the area was later found to be smooth.- Following treatment for the cut, Respondent signed a Notice of Injury form which is required by the Division of Workers' Compensation for all work- related injuries. This form alleged the injury had been sustained as described in paragraph 8. Subsequently, an investigation conducted by the FHP raised questions regarding the incident with Ms. Hawkins and the "work-related" cut on Respondent's arm. Lt. Baker attempted to interview Respondent regarding this investigation. Respondent declined to be interviewed and resigned from the FHP. Later, Respondent obtained a job as a security officer with the Dade County School District. Prior to his resignation from the FHP, Respondent did not claim he had cut or injured both arms on the morning of April 9, 1987. Lt. Miller did not observe a cut on Respondent's right arm on April 9, 1987. Neither Lt. Miller nor Trooper Allen, a trained traffic homicide investigator, could discover any trace evidence on Respondent's FHP vehicle to substantiate Respondent's claim regarding the cut. There were no breaks in the metal or paint along Respondent's door in the area he identified as the point of injury. There were no rough or jagged edges. The Notice of Injury signed by Respondent contained information which was false or misleading.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice standards and Training Commission enter a final order revoking the certification for a law enforcement officer held by Respondent. DONE and RECOMMENDED this 19th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of January, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1-38 are accepted. Paragraph 39 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Paragraph 40 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Respondent's testimony and that of Mr. Black relating to the alleged wound to the right arm was not credible. Paragraph 41 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. Paragraph 42 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-5 are accepted. With regard to paragraph 6, to the extent that it relates Respondent's testimony it is correct, however, the fact it not. That is, it is found that Respondent injured his left arm at the Hawkins' home; consequently, Paragraph 6 is rejected as contrary to the weight of the credible evidence. Respondent's account was not credible. Paragraph 7 is accepted to the extent that it relates the story given by Respondent; such story being deemed incredible and therefore, rejected as contrary to the weight of credible evidence. Paragraph 8 is accepted to the extent that it relates the testimony of the troopers; however, the conclusion reached is speculative and unsupported by the record in this cause. Paragraph 9 is rejected as contrary to the weight of credible evidence. Paragraph 10 is accepted; however the facts related in that form were false or misleading. Paragraph 11 is rejected as argument, or unsupported by the credible evidence in this cause. Paragraph 12 is rejected as argument, or unsupported by the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Denis Dean, Esquire Dean & Hartman, P.A. 10680 N. W. 25 Street Suite 200 Miami, Florida 33172 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Mary Jean Brooker, is a teaching veteran of approximately 18 years, and most recently was employed by Petitioner as a specific learning disabilities (SLD) teacher at Bear Creek Elementary School in St. Petersburg, Florida, pursuant to an annual contract. Respondent received worker's compensation benefits from June 8, 1992, to November 30, 1992, based on the recommendation of Petitioner's worker's compensation doctor, Scott Russell, M.D., her treating physician, and Terry Dillon, M.D., who conducted an independent medical exam (IME) at Petitioner's request. Respondent's leave (and claim for benefits) was caused by an accident in which she was injured on June 8, 1992, when a recycling truck backed into her vehicle while she was driving on school grounds. The injury in the above accident aggravated a previous back injury that Petitioner sustained when she was "rear ended" in an automobile accident in December 1990. Upon being placed on worker's compensation leave, Respondent was not advised by Petitioner's employees or agents what her limitations were in terms of working at home or elsewhere. Dr. Terry P. Dillon, a self-employed physician employed by Medical Doctors of Morton Plant, Inc., conducted an IME on Respondent. Dr. Dillon specializes in treating and evaluating patients who sustain on the job injuries and consults with industrial managers on work place injuries. Dr. Dillon's evaluation was requested by Petitioner's risk management section. Dr. Dillon took a medical history of Respondent and conducted muscular, skeletal and imaging studies. Dr. Dillon also reviewed Respondent's prior medical records. Dr. Dillon's first examination of Respondent was on September 17, 1992. He noted that Respondent had a long history of low back pain; facial joint pain with some symptoms which were spontaneous and other lower back and neck pain and facial joint injuries stemming from the motor vehicle accident during December 1990. During the more recent accident of June 8, 1992, Dr. Dillon observed an increase in the symptoms and Respondent also consulted with a chiropractor and a neurologist who observed tenderness over Respondent's neck muscles and shoulder blades. Dr. Dillon observed no evidence of injuries to Respondent's upper extremities other than a mild compression of nerves in the upper torso area. Dr. Dillon evaluated the tenderness in Respondent's low back but he detected no spasms. He found some sciatic tenderness in the lower extremities although he noted no lower nerve deficits during the normal clinical exam. Dr. Dillon observed some degenerative changes associated with age and the accident related injuries. He was unable to tell if bony changes were due to the more recent August 1992 motor vehicle accident or were a result of the earlier accident. He opined that it was more likely than not that the injury was not related to the '92 accident. Finally, Dr. Dillon speculated that Respondent evidenced some "psychological investment of pain" however he could not confirm his speculation. Dr. Dillon opined that Respondent should "go forward with an active rehabilitation program" and that after approximately four weeks she should be able to return to work part-time in light duty status and perhaps after eight weeks of following such a regimen, Respondent should be able to return to work full-time after 16 weeks. In concluding, Dr. Dillon opined that Respondent was totally unable to work the entire month of September 1992, although he felt that thereafter she should have been able to work on a part-time basis. Respondent was not issued any work restrictions by Dr. Dillon. Respondent was rated "temporary total disability" by Dr. Dillon which means that she was unable to do a combination of sitting, standing and walking during a three to four hour period. Respondent also served as an SLD coordinator while employed at Bear Creek. As an SLD teacher and coordinator, Respondent had to assess and work with the development of skills for SLD students. Her class sizes ranged from a high of 20 to a low of 8 students and the instruction was individualized. In 1992, Respondent advised her principal, Susan Daniels, that she had an auto accident during 1990 although she did not request any specific accommodation based on the injuries sustained in that accident. During the summer of 1992, while employed as a summer school teacher, Respondent was involved in the August 1992 accident. As a result of that accident, Respondent incurred injuries and advised Daniels that she would be unable to continue teaching during the summer and the beginning of the 1992-93 school year. Respondent also told Daniels during the summer of 1992 that she, at times, experienced severe pain from the 1992 accident. Respondent's husband purchased a daycare center during 1991. When the business was purchased, Respondent often assisted her husband in the operation of the daycare after school hours and on weekends. For her services, Respondent was paid a salary until July 1993. While Respondent was convalescing after the 1992 accident, she often went to the daycare center, out of boredom, to assist the daycare staff. The daycare center has a staff of approximately eight teachers who work a full time schedule. Prior to the accident during 1992, Respondent worked approximately eight to ten hours per week at the center. After the accident, she has been working approximately 2 1/2 to 4 hours per week doing such things as answering the phones, responding to inquiries about rates, assisting in billings and other related chores. Respondent and her husband moved to a new residence on September 18, 1992. Respondent assisted in the move by doing such things as loading clothing, lamps and light items such as pictures and other small memorabilia into her car. Additionally, Respondent assisted in cleaning the old home that they were moving from and she did some cleaning of the new home before they placed heavy furniture and appliances in the home. Respondent did not do any heavy lifting or pulling during the move on September 18, 1992. Respondent has "good" and "bad" days. In other words, her level of pain fluctuates from day to day. Respondent was placed under surveillance by the worker's compensation carrier for Petitioner. During the surveillance, Respondent was observed assisting in the move from periods up to two hours during the a.m. and approximately three hours during the p.m. on September 19, 1992. However, Respondent did not lift any heavy items and the videotape of the move did not establish anything to the contrary. To the extent that she was seen lifting a large trash bin, it could not be determined how heavy that trash bin was. Respondent was assisted, by another female, in lifting the trash bin and taking it to the sidewalk. Investigators Angela Elliott and Clifford Froggat placed Respondent under surveillance during September and November 1992. On November 5, Respondent was observed travelling from her residence to the daycare center where she remained an undetermined amount of time. Respondent has been paid worker's compensation benefits for the injuries sustained in the June 8, 1992, motor vehicle accident. Respondent has filed a tort claim against the alleged tortfeasors and she expects to repay the Petitioner for any worker's compensation benefits that she recovers as a result of that claim. Respondent reported for work when she was released by her treating physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order withdrawing the suspension and ultimate dismissal of Respondent and reinstate her to the position of an SLD teacher and make her whole for any loss of pay she sustained as a result of her dismissal. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2293 Rulings on Petitioner's proposed findings of fact: Paragraph 6, adopted as relevant, paragraphs 2 and 3, Recommended Order. Paragraph 8, adopted as modified, paragraph 7, Recommended Order. Paragraph 12, adopted as modified, paragraph 17, Recommended Order. Paragraph 14, adopted as modified, paragraph 15, Recommended Order. Paragraph 15, adopted as relevant, paragraph 14, Recommended Order. Paragraphs 16 and 17, rejected irrelevant. Paragraphs 18 and 19, adopted in the Preliminary Statement, paragraph 1. Rulings on Respondent's proposed findings of fact: Paragraphs 5 and 6, adopted as modified, paragraph 22, Recommended Order. Paragraph 9, adopted as modified, paragraph 20, Recommended Order. Paragraphs 10 and 11, rejected, irrelevant and/or subordinate. Paragraphs 15 and 16 rejected, argument. Paragraph 18, rejected, not probative. COPIES FURNISHED: Robert G. Walker, Jr., Esquire 1432 Court Street Clearwater, Florida 34616-6147 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, Southwest Largo, Florida 34640-3536
The Issue The issues are whether the agency statement identified as Section 5.02.08 of the Florida Highway Patrol Auxiliary Policy Manual falls within the definition of a rule, and if so, whether rulemaking is feasible and practicable.
Findings Of Fact Based upon all of the evidence, including the stipulation of facts, the following findings of fact are determined: Petitioner, Berwyn R. Spear, also known as Pete Spear, operates a business under the name of "Pete's Chevron" located at 2151 North Monroe Street, Tallahassee, Florida. Among other things, the business provides wrecker services for towing automobiles. Besides operating his service station, for the last twelve years petitioner has been a member of the Florida Highway Patrol Auxiliary (Auxiliary), a statutorily created volunteer service organization whose members ride with and assist members of the Division of the Florida Highway Patrol (FHP) in the performance of their regular duties. He has expended almost $1,000 for equipment and uniforms. The Auxiliary functions under the direct supervision of the FHP, which in turn is a governmental unit under the jurisdiction of respondent, Department of Highway Safety and Motor Vehicles. Auxiliary members are not required to be sworn police officers but are certified by the Criminal Justice Standards and Training Commission. Members are required to have monthly activity amounting to a minimum of twenty-four hours per calendar quarter, but they receive no pay or benefits other than those prescribed by Part IV of Chapter 110, Florida Statutes, which governs volunteer organizations. Finally, Auxiliary members serve at the pleasure of the FHP director and are subject to removal at will. They have no statutory right of review or appeal for disciplinary action but there is an internal disciplinary review process administered by an FHP review board in Tallahassee. Pursuant to state law, and subject to further requirements in Chapter 15B-9, Florida Administrative Code, the FHP maintains a wrecker rotation list, by which the FHP facilitates wrecker services to persons needing assistance on the roadways. For the last twelve years and until February 1992, petitioner's business was on the rotation list and he derived several hundred dollars per month in such towing income. The rotation list works in the following manner. Whenever a trooper encounters circumstances requiring the towing of a motorist's vehicle, the trooper notifies the dispatcher of the need for a wrecker from the rotation list, unless the motorist expresses a desire for a specific wrecker service. The dispatcher then telephones the next appropriate wrecker service from the rotation list and makes a request for services. It is noted that FHP troopers are prohibited by internal policy 5.19.00 found in the FHP Policy Manual from being employed by any wrecker company (as opposed to just those on the rotation list) since the FHP deems this to be an unacceptable conflict of interest. The FHP has developed an Auxiliary Policy Manual (Manual) containing various written standards and guidelines governing the conduct of Auxiliary members. Like other policy manuals developed by the FHP, the Manual has not been formally adopted as a rule. As is relevant to this controversy, Section 5.02.08 of the Manual relates to the subject of conflict of interest, and prior to January 1992, simply stated in part that "any conflict between private employment and the FHP or any abuse of a member's FHPA position that benefits his employment will result in immediate dismissal from the FHPA." However, the FHP did not construe this provision as barring petitioner from being a member of the Auxiliary and at the same time having his wrecker business on the FHP rotation list. On January 29, 1992, the director of the FHP issued a memorandum to all troop commanders regarding a change in Section 5.02.08 of the Auxiliary Policy Manual. The newly added language read as follows: Due to the sensitive relationship between the Florida Highway Patrol and wrecker companies, employment involving wrecker companies that do business with the Florida Highway Patrol is considered to be a conflict of interest. The director's memorandum provided the following instructions to all troop commanders regarding the new language in Section 5.02.08: The attached policy revisions will bring the Florida Highway Patrol Auxiliary Manual in line with the Florida Highway Patrol Manual regarding employment by wrecker companies. If (sic) is requested that you survey all Auxiliary members in your troop to determine if any are in violation of this policy. Please take the necessary action to bring members found in violation of this policy into compliance. In the event the member cannot comply with this policy, it will be necessary that the member resign from the Auxiliary. Pursuant to this new policy, an FHP troop commander contacted petitioner in February 1991 and advised him that he must either remove his wrecker business from the FHP wrecker rotation list or resign from the Auxiliary. Although strongly disagreeing with the policy, petitioner advised the FHP by letter dated February 18, 1992, that he wished to remove his wrecker business from the rotation list. He did so in order to remain a member of the Auxiliary. After his informal appeal challenging the policy was denied, on August 7, 1992, petitioner filed his petition seeking to have the new language in Section 5.02.08 declared invalid as an unpromulgated rule. According to the FHP's chief of special operations, there is no discretion on the part of the troop commander or other enforcing officer except to require strict adherence to the policy. In other words, the policy in question is not subject in application to the discretion of the enforcing officer. Therefore, the policy has uniform application to all Auxiliary members and requires those members who own wrecker businesses on the FHP rotation list to choose between remaining a member of the Auxiliary or removing their business from the FHP rotation list. Since he is directly impacted by the policy, petitioner has standing to bring this action. In August 1992, respondent adopted substantial amendments to Chapter 15B-9, Florida Administrative Code, which relate to "Wrecker Qualifications and Allocation System." However, the rules do not address petitioner's concerns nor codify the so-called conflict of interest policy applicable to Auxiliary members. At hearing respondent also expressed the view, without further explanation, that if it had to adopt the Auxiliary policies as formal rules, it would be a difficult and "cumbersome" task, it might well "have the effect of eliminating the auxiliary service", it would "serve to inhibit the agency from doing its statutory job", and it "would seriously affect the ability of the agency to effectively operate an auxiliary volunteer service." These assertions were not contradicted. Even so, rulemaking is found to be feasible and practicable since there is no evidence to support a finding that at least one of the exceptions in Subsections 120.535(1)(a) and (b), Florida Statutes, is applicable.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 11th day of May, 2011.
Findings Of Fact Vernon St. Charles is a radio teletype operator I with the Florida Highway Patrol and is a career service employee with appeal rights with the Career Service Commission. On or about November 1, 1977, St. Charles was the radio teletype operator on duty at the Florida Highway Patrol Tampa District Office. While he was on duty, an accident occurred involving a young child. St. Charles dispatched a Florida Highway Patrol trooper to the scene of the accident who reported that the child was very seriously injured. The trooper requested a homicide investigator be dispatched which St. Charles did. G. Ronald Stroud is a sergeant with the Hillsborough County Sheriff's Department assigned the duty of investigating accidents involving school-age children as a part of the Department's safety program. Sergeant Stroud received notification from the radio dispatcher of the sheriff's department that an accident had occurred near a school involving a child which Florida Highway Patrol Units were investigating. Sergeant Stroud called the Florida Highway Patrol District Office and spoke with St. Charles. Sergeant Stroud identified himself and asked about the accident and how old the child was to determine whether he should follow up the accident for the Hillsborough County Sheriff's Department. St. Charles had received calls from the medical examiner's office, the U.S. Post Office, whose vehicle was involved in the accident, and Sergeant Stroud from the Hillsborough County Sheriff's Department. At the hearing, St. Charles was uncertain which call had been Stroud's; however, St. Charles explained that he had tried to contact troopers at the scene to get additional information and that they were away from their vehicles. St. Charles did not have the information requested by Sergeant Stroud and therefore referred him to the hospital where they had taken the child. Sergeant Stroud identified Exhibit 2, a complaint letter he had written to Lieutenant Lowman of the Florida Highway Patrol. Stroud stated in the letter that an unknown male dispatcher, later determined to be St. Charles, had told Stroud that "He wasn't really concerned how old the child was and that if I (Stroud) wanted to know I could call the Brandon Hospital." At the hearing, Sergeant Stroud reconfirmed his recollection of St. Charles' comments to him. Without regard to the exact language used by St. Charles, it is clear that St. Charles did not provide Sergeant Stroud with the information which he sought and did not explain the existing situation which prevented him from giving Stroud the information. The position of radio teletype operator is an important one because the operator is responsible to transmit calls to and from the troopers by radio, perform certain law enforcement checks for the troopers by telephone or teletype, and respond to telephone calls from the public and other law enforcement agencies. The radio teletype operator's duties contribute to the overall enforcement effort of the Florida Highway Patrol and to the relationship of the Florida Highway Patrol with the public and other law enforcement agencies. This requires that the radio teletype operator perform his duty in a professional manner, using good personal judgment and diplomacy. St. Charles had been counseled previously about the manner in which he conducted his duties which at times bordered upon rudeness. St. Charles explained that he spoke loudly and in short sentences because his mother had been deaf and that in the pressure situations which sometimes developed, his manner of speech and abruptness might appear to be discourteous and rude to those with whom he was speaking.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency took the disciplinary action for good cause and therefore should be sustained. DONE and ORDERED this 13th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1978. COPIES FURNISHED: Vernon L. St. Charles 1401 North Forbes Road Plant City, Florida 33566 Mrs. Dorothy Roberts Appeals Coordinator, CSC 530 Carlton Building Tallahassee, Florida 32304 Edwin Strickland, Esquire John Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida Mr. Maurice Helms Personnel Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida
Findings Of Fact J. W. Joines is an employee of the Division of Highway Safety and Motor Vehicles, Florida Highway Patrol. Joines has permanent Career Service status in his position, and filed a timely appeal of the disciplinary action taken against him. Joines was 45 minutes late for work on October 7, 1976 having been awakened by the local police at his supervisor's request. He was 30 minutes late reporting to work on November 27, 1976. On December 25, 1976 he took an unauthorized two hour break in his duty tour. Joines was orally counseled for the first incident, received an oral reprimand for the second incident, and a written reprimand for the third incident. On March 13, 1977, Joines was 34 minutes late reporting for work. Joines received a 16 hours suspension for neglect of duty for this incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency's action was for good cause and should be sustained. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1977. COPIES FURNISHED: Enoch J. Whitney, Esquire Dept. of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 J. W. Joines 690 Nelson Drive Orange Park, Florida 32073 Ms. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether two policy statements issued by Respondent, TL-10 and RS/TL 14-18, are unadopted rules, as defined in section 120.52(20), Florida Statutes, that violate section 120.54(1)(a), Florida Statutes.3/
Findings Of Fact The Parties Petitioner is a co-trustee of the Sparkhill Trust (the "Trust"), which was created in July 2009. Opinicus Sentinel, LLC ("Opinicus Sentinel") currently is a co-trustee of the Trust, and has been a trustee of the Trust since its creation. Barbara Williams is the manager of Opinicus Sentinel, and has served in that capacity since its creation.8/ Petitioner was appointed as a trustee of the Trust on October 11, 2016.9/ The Trust owns a 2001 Porsche 996/911 Turbo motor vehicle (hereinafter, "Vehicle"). Solely for purposes of this proceeding,10/ the Vehicle Identification Number ("VIN") of the Vehicle is WP0ZZZ99Z1S682830, as alleged in the Amended Petition. As of the final hearing, the Vehicle was located in Germany. During all times relevant to this proceeding, the Vehicle was located in a foreign country. Respondent is the state agency responsible for, among other things, implementing and administering chapter 319, Florida Statutes, governing the issuance of certificates of title for motor vehicles. See § 319.17, Fla. Stat. Background and Events Giving Rise to This Proceeding On or about September 30, 2014, Opinicus Sentinel——at that time, the sole trustee of the Trust——submitted an application consisting of completed Form 8204011/ and supporting documentation to the Lee County Tax Collector ("Tax Collector")12/ on behalf of the Trust, requesting issuance of a certificate of title for the Vehicle in the name of the Trust. The application included a letter from a motor vehicle dealer in London, Ontario, Canada, stating that the dealer had inspected the Vehicle and that the Vehicle's VIN is WP0ZZZ99Z1S682830. On or about October 22, 2014, the Tax Collector sent a letter to Ms. Williams, as manager of Opinicus Sentinel, stating that the application for certificate of title could not be processed "because all used vehicles coming into Florida from a foreign country must have the Vehicle Identification Number verified by a Division of Motorist Services Compliance Examiner." When asked for further explanation, the Tax Collector responded by electronic mail ("email"): The Lee County Tax Collector is a Constitutional Office that provides the services of the Department of Highway Safety and Motor Vehicles (DHSMV). As such, we are bound by both statutory and department procedural guidance. Procedures often are entitled Technical Advisories. The technical advisory relied upon by this office indicates that all used vehicles coming into Florida from a foreign country must have the VIN verified by a Division of Motorist Services Compliance Examiner as referenced in TL-10 in effect on the date the correspondence was drafted. Email from Tax Collector to Barbara Williams, dated October 27, 2014 (emphasis added). This email directed Ms. Williams to contact Respondent if the trustee wished to challenge the denial of the application for certificate of title for the Vehicle. On November 3, 2014, Ms. Williams contacted Respondent, asserting that the Tax Collector's denial of the application for a certificate of title violated section 319.23(3)(a)2, Florida Statutes. Also on that date, Ms. Williams filed a Petition for Administrative Hearing with Respondent on behalf of Opinicus Sentinel, challenging TL-10 as an invalid and unadopted rule pursuant to section 120.56(4).13/ On November 24, 2014, Respondent sent a letter to Ms. Williams, refusing to issue the requested certificate of title. The letter stated: After researching the issue identified in your letter, the Department stands by the decision made by . . . [the Lee County Tax Collector]. Section 319.23(a)(2), Florida Statutes, states that, '[a]n appropriate departmental form evidencing that a physical examination has been made of the motor vehicle by the owner and by a duly constituted law enforcement officer in any state, a licensed motor vehicle dealer, a license inspector as provided by s. 320.58, or a notary public commissioned by this state and that the vehicle identification number shown on such form is identical to the vehicle identification number shown on the motor vehicle. Letter from Respondent to Barbara Williams, dated November 24, 2014 (emphasis added). The letter further stated: However, section 319.23(11), Florida Statutes, states that, '[t]he Department shall use security procedures, processes, and materials in the preparation and issuance of each certificate of title to prohibit to the extent possible a person's ability to alter, counterfeit, duplicate, or modify the certificate of title.' In the case at bar, the Department is choosing to implement the language found in 319.23(11) to ensure that the certificate of title is issued correctly. The Department has the authority to require VIN verifications on vehicles entering the state of Florida from a foreign country before a title can be issued. In subsequent correspondence to Ms. Williams, dated December 18, 2014, Respondent stated: I can only again point you to s. 319.23(11). Since April of 2000 the Department's policy is to require all used vehicles coming into Florida from a foreign country to have the VIN verified by a Motor Vehicle Field Office Compliance Examiner prior to being titled. * * * I have included a copy of the Department's Technical Advisory, TL 14-18, which explains the Department's policy in depth.[14/] On December 18, 2014, Respondent referred Opinicus Sentinel's Petition for Administrative Hearing to DOAH. The case was assigned DOAH Case No. 14-6005. On March 3, 2015, Opinicus Sentinel withdrew the petition, and the DOAH case file for Case No. 14-6005 was closed. Notwithstanding that Case No. 14-6005 was pending at DOAH, on February 25, 2015, Respondent sent Ms. Williams a letter dismissing the previously-filed petition for administrative hearing with leave to file an amended petition. The letter also asserted an additional basis15/ for Respondent's denial of the certificate of title for the Vehicle, specifically: Because the vehicle to be titled is not currently in Florida, clearly the vehicle will not be operated on the roads of Florida. Accordingly, the vehicle cannot be registered in Florida and the titling provisions of Chapter 319, Fla. Stat., do not apply. Therefore, the application for title you submitted to the Lee County Tax Collector pursuant to section 319.23, Fla. Stat. will not be approved. While DOAH Case No. 14-6005 was pending, Stephen J. Williams, as beneficiary of the Trust, filed a Petition for Administrative Hearing challenging both TL-10 and RS/TL 14-18 as unadopted and invalid rules pursuant to section 120.56(4). That case was assigned DOAH Case No. 15-0484 and ultimately was dismissed by Final Order dated March 25, 2015.16/ As previously noted, on October 11, 2016, Petitioner was appointed as a co-trustee of the Trust. On October 17, 2016, Petitioner, as a trustee of the Trust, initiated this proceeding by filing a Petition for Administrative Hearing, again challenging both TL-10 and RS/TL 14-18 as unadopted and invalid rules. As noted above, the scope of this proceeding subsequently was narrowed to eliminate the challenge to the substantive invalidity of TL-10 and RS/TL 14-18, so that the sole issue in this proceeding is whether TL-10 and RS/TL 14-18 are unadopted rules that violate section 120.54(1)(a). The Challenged Statements: TL-10 and RS/TL 14-18 TL-10, identified by the Tax Collector as the original basis for denial of issuance of the certification of title for the Vehicle, went into effect on April 30, 2014. The portion of TL-10 pertinent to this proceeding states: IV. MISCELLANEOUS INFORMATION * * * B. Vehicle identification number (VIN) verifications are to be completed by the applicant. * * * 2. VIN verification may be done by one of the following: * * * c. Florida Division of Motorist Services (DMS) Compliance Examiner, DMS or tax collector employees. * * * NOTE: All USED vehicles coming into Florida from a foreign country, including dealer transactions, MUST have the VIN verified by a DMS Compliance Examiner. Technical Advisory RS/TL 14-18 is titled "Motor Vehicles Coming Into Florida from a Foreign Country." It states in pertinent part: All used vehicles coming into Florida from a foreign country (including dealer transactions) must have the vehicle identification number verified by a Motor Vehicle Field Office Compliance Examiner prior to being titled. * * * The Regional Motor Vehicle Field Office staff will perform an inspection of the vehicle that includes verification of the public VIN, confidential VIN or secondary VIN, manufacturer’s label or letterhead letter that states compliance with US vehicle standards, computer checks of NMVTIS/NICB data-bases, and a review of documentation showing vehicle clearance through US Customs (if applicable). Copies of these documents, including a copy of the completed form HSMV 84044, will be maintained in the regional office. The VIN verification will be completed by the compliance examiner on a form HSMV 84044, in lieu of a form HSMV 82040 or HSMV 82042. The compliance examiner will give the customer the original required documentation (including the original complete form HSMV 84044). The customer must submit all documentation to a tax collector’s office or license plate agency in order for him/her to apply for a Florida Certificate of Title. The undisputed evidence establishes that neither TL-10 nor RS/TL 14-18 have been adopted as rules pursuant to the procedures prescribed in section 120.54. Respondent did not present any evidence showing that rulemaking was not practicable or feasible. Respondent's Position Respondent admitted, in its Amended Responses to Requests to Admissions served on Petitioner on November 21, 2016, that TL-10 and RS/TL 14-18 are intended to be, and are, of general application; that TL-10 and RS/TL 14-18 implement, interpret, or prescribe law or policy and/or describe the procedure or practice requirements of Respondent; and that TL-10 and RS/TL 14-18 have not been, and are not published in the Florida Administrative Code. Additionally, Respondent acknowledges that neither TL-10 nor RS/TL 14-18 have been adopted as rules. Respondent takes the position that Petitioner lacks standing to challenge TL-10 and RS/TL 14-18 as unadopted rules. Specifically, Respondent asserts that Petitioner has not suffered a "real or immediate injury in fact" for purposes of having standing because although the Tax Collector and Respondent referred the Trust to TL-10 and RS/TL 14-18 as grounds for denial of the certificate of title, they were not the "ultimate grounds" on which the Trust was denied a certificate of title. On this basis, Respondent asserts that it did not apply TL-10 or RS/TL 14-18 to Petitioner, so Petitioner did not suffer injury as a result of application of these statements. Respondent further asserts that because Petitioner cannot meet the requirements in section 319.23 to be entitled to issuance of a certificate of title for the Vehicle, Petitioner's claimed injury in this proceeding is speculative and hypothetical. To this point, Respondent argues that Petitioner's alleged injury in this proceeding is speculative because the Trust has not satisfied the requirements of section 319.23 for purposes of being entitled to issuance of a certificate of title. Specifically, Respondent argues that because the Vehicle is not physically present in the state of Florida, it is not being operated on the roads of Florida, and because it is not being operated on the roads of Florida, it is not required to be registered or to obtain a certificate of title——and, indeed, cannot be registered and a certificate of title issued until it is physically present in Florida. Accordingly, Respondent reasons, until the Vehicle is physically present in Florida and thus subject to registration and licensure requirements, TL-10 and RS/TL 14-18 were not, and cannot be, applied to determine whether the certificate of title for the Vehicle should be issued. Also on this point, Respondent argues that Petitioner's alleged injury is speculative because Petitioner did not meet the requirement in section 319.23 that a physical examination of the Vehicle be made by the owner and a motor vehicle dealer licensed in the state of Florida. Respondent further asserts that Petitioner's alleged interest does not fall within the zone of interest of this proceeding. Specifically, Respondent argues that because the Vehicle is located in a foreign country, Petitioner is unable to establish that the Vehicle must be registered and a certificate of title issued in Florida. Respondent concludes: Because Petitioner cannot meet the burden of establishing that the motor vehicle in question is required to be licensed and registered in Florida, and because he failed to satisfy the application requirements of section 319.23(3)(a)(2), he cannot meet the burden of establishing that any interest in obtaining a certificate of title for the vehicle in question is within the 'zone of interests' to be protected and regulated.
