Findings Of Fact Grimes has been employed by FHP for 22 years and was promoted to lieutenant in 1977. In April, 1977, FHP Trooper E. J. Weatherly took 4 CB radios and a moped into custody after stopping several juveniles by the side of the road under suspicious circumstances. Weatherly spoke with Detective Brad Anderson of the Dade County Public Safety Department, about the property and it was decided that the suspected contraband remain with FHP in Weatherly's possession. Later, Weatherly and Grimes conversed about the CB radios. When Grimes asked if a report had been made, Weatherly explained what had been done regarding the radios. Grimes then borrowed of the CBs with the intention of checking its size to see if it would fit in his patrol car, but not for the purpose of operating it. The radio was returned on June 1, 1977, after having been kept in the trunk of Grimes' FHP vehicle. Grimes did not sign a receipt for the CB radio he obtained from Weatherly. There was no evidence to indicate that Grimes intended to convert the CB to his own use.
The Issue An administrative complaint dated June 19, 1997, alleges that Respondent, Richard P. Bushey, committed aggravated assault and had adjudication withheld on a felony charge of carrying a concealed weapon, and therefore violated Section 493.6118(1)(j), Florida Statutes, and was not qualified for licensure, pursuant to Sections 493.6106(1)(b), 493.6118(1)(f) and 493.6101(7), Florida Statutes. The issues for disposition in this proceeding are whether the allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times relevant to the matters at issue, Respondent, Richard Paul Bushey (Bushey), held a class "D" security license no. D94-16538. Sometime around 9:30 p.m. on July 19, 1996, in Winter Garden, Florida, Joseph Howers was in a convenience store standing in line with his purchases when an individual, later identified as Respondent Bushey, entered the store swearing, waving his arms, and complaining about how people drive. Mr. Howers, who had never met Respondent Bushey before, commented something like, "Life is rough all over. I guess he'll get over it." After paying for his purchases, Mr. Howers left the store and got into his truck which was parked near the door of the store. He leaned over to arrange his parcel on the floor of the passenger side of the vehicle, and as he sat back up, he heard mumbling and saw Respondent Bushey at the truck window on the driver's side. Respondent Bushey was swearing and inarticulate, and Mr. Howers thought there was something wrong with him. Mr. Howers said, "Listen, go away, leave me alone. I don't know what your problem is but it's not with me." Respondent Bushey stepped back, lifted his t-shirt, and put his hand on a gun that was under the shirt. Afraid, but still under control, Mr. Howers said, "You don't want to do this- -I'm going to start my truck." Respondent Bushey pulled the gun out and extended it 2-3 feet from Mr. Howers' head. Mr. Howers backed out slowly and Respondent Bushey walked along, following the truck. When he was close to the road, Mr. Howers leaned across the seat out of the range of his vehicle's windows and stepped on the gas pedal. Once out of sight of Respondent Bushey, Mr. Howers called 911 on his cellular phone and reached the Winter Garden police dispatcher. He reported the incident and the police were sent to the convenience store. Mr. Howers continued to the police station where he was told that the arrest had already been made. He then returned to the convenience store to identify the individual who pulled the gun on him. The individual was Respondent Bushey, who by this time was in custody in the back of the patrol car. It was apparent to Mr. Howers that Respondent Bushey, at the time of the incident, had the ability to pull the trigger and shoot him. Mr. Howers did not provoke or otherwise justify the attack and had a reasonable and well-founded fear for his safety. As admitted in his response to requests to admit, on or about January 13, 1997, Respondent Bushey had adjudication withheld, in Orange County, Florida, on a felony charge of carrying a concealed weapon.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of State enter its Final Order revoking the Class "D" security license of Respondent Paul Bushey. DONE AND ORDERED this 12th day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of February, 1998. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 John M. Russi, Director Division of Licensing Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Douglas D. Sunshine, Esquire Division of Licensing Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Richard P. Bushey 1620 Cimarron Hills Drive Apopka, Florida 32703
Findings Of Fact In 1971, Respondent became a state trooper with the Tennessee Highway Patrol. The other troopers introduced him to Mrs. Gary and advised him to use Gary's Garage for towing and wrecker service when he was working in that area, as they did, because Mrs. Gary gave the troopers gifts and allowed them to use her garage for work on their personal automobiles and provided them with free parts. Respondent became friendly with Mrs. Gary, and she began giving him clothing and food, as she did the other troopers, to show her gratitude for their calling her tow truck concern to haul away cars involved in accidents in her area. Mrs. Gary was not obligated to pay Respondent for referring cars to Gary's Garage, nor was Respondent obligated to refer cars to that garage. About the time that Respondent refused to support a political candidate endorsed by Mrs. Gary and also became involved with a new girlfriend, Mrs. Gary told Respondent to stop by her garage to pick up his Christmas present. She told him that if she were not there when he came by, his present would be in the top drawer of her desk. Respondent went to Gary's Garage to pick up his present while he was on duty. Mrs. Gary was not there, and Respondent looked in the top drawer of Mrs. Gary's desk. He found an envelope with his name on it. He took the envelope and left. He later opened the envelope and removed the three $20 bills he found in it. His hands turned green from the ink on the bills. He panicked and threw the money out the car window. Respondent received a call from the Captain telling him to return to the station. When he arrived there, the Captain asked him if he took money from Gary's Garage. When he admitted he did pick up his Christmas present, he was arrested. Based upon Mrs. Gary's allegations, Respondent was indicted on January 26, 1972, and charged with larceny and concealing stolen property in the amount of $577. Based upon the advice of his attorneys, Respondent pleaded guilty to petty larceny, a misdemeanor. On June 2, 1972, he was sentenced to a term of 11 months and 29 days, which sentence was suspended, and Respondent was placed on five years probation. With the permission of his parole officer, Respondent left Tennessee and moved to Florida. Respondent was hired by the Homestead Police Department in June or July, 1973. He attended and completed training at the police academy. On September 28, 1973, he was issued his certification as a Law Enforcement Officer by the State of Florida. Respondent worked as a Law Enforcement Officer with the Homestead Police Department for six and one-half years without receiving even a reprimand. While employed there, he completed his term of probation. In October, 1979, Respondent married a lady who was formerly married to the vice-mayor's nephew. After six weeks, she left Respondent for her exhusband. Her parents involved themselves in the marital problems and pressured the Homestead Police Department to investigate Respondent. The Chief agreed to suspend Respondent with pay while an investigation was conducted, but Respondent resigned on January 3, 1980, rather than be subjected to such politics. Charles T. Renegar has been in law enforcement for 36 years and is the Chief of Police of the Hialeah Gardens Police Department. Respondent was recommended to him by one of Respondent's former superiors at the Homestead Police Department. Respondent was employed as a Law Enforcement Officer by the Hialeah Gardens Police Department on September 22, 1980. He took the sergeant's examination on December 2, received the highest grade on the examination and was promoted to sergeant on December 17, 1980. In June, 1981, Respondent received the third highest grade on the lieutenant's examination. Respondent's certification became automatically inactivated while he was between employment by the Homestead Police Department and the Hialeah Gardens Police Department. His request for activation of his certification after he joined the Hialeah Gardens Police Department has been held in abeyance pending the outcome of this proceeding. Although Chief Renegar ran the police academy as its nighttime coordinator for 14 years, he never met a more sincere and dedicated police officer than Respondent. During the short time Respondent was working for the Hialeah Gardens Police Department, he received the Optimist Club Award as officer of the quarter. He is highly regarded in the Hialeah community. Renegar has held Respondent's sergeant's position open for him and considers Respondent in line for a lieutenant's position. Renegar flew with Respondent at his own expense to a full evidentiary hearing before the Tennessee Clemency Board. On February 19, 1982, Respondent was pardoned by the Governor of the State of Tennessee of his misdemeanor conviction of petty larceny. Respondent's guilty plea to the misdemeanor of petty larceny is the only obstacle to active recertification of Respondent's Certificate of Compliance #02-8832 by the Petitioner. The undisputed facts of the matter which resulted in Respondent's guilty plea to petty larceny involved accepting gratuities and did not involve theft, embezzlement or larceny.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT: A final order be entered dismissing the Administrative Complaint against Respondent Ronald Lee Dunn and activating his Certificate Number 02-8832 as a Law Enforcement Officer in the State of Florida. DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 November, 1982. COPIES FURNISHED: Percy W. Mallison, Jr., Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Terrence J. McWilliams, Esquire 1999 SW 27th Avenue Miami, Florida 33145 G. Patrick Gallagher, Director Criminal Justice standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO. 81-3053 RONALD LEE DUNN, Respondent. /
The Issue The issue is whether Respondent is guilty of employment discrimination against Petitioner.
Findings Of Fact Petitioner was born in Spain and is of Hispanic origin. At all material times, he has been employed by Respondent. Since 1992, he has been employed as a truck driver. At the time of the incident described below, Respondent was a Waste Truck Driver. His job was to drive a 66,000-pound truck in Miami to collect garbage from the utility customers. On February 28, 2006, Petitioner was operating his truck along Northwest 54th Street. This is a major east-west arterial through central Dade County. At the location of the incident, this busy road contains five lanes of traffic. Leaving a strip mall, from which he had just collected garbage, Petitioner drove the truck across this arterial, crossing double-yellow lines in the middle, in order to save time in driving to the next pick-up location. Petitioner was not at an intersection and knew that the double-yellow lines meant that his maneuver was illegal. Petitioner "explains" that he chose to do this maneuver at the urging of the Waste Collectors riding on the back of the truck and with the knowledge that other truck drivers had done it too. Unable to clear all of the lanes at one time, Petitioner was forced to stop the truck around the middle of the highway at an angle closer to perpendicular than parallel to the direction of the traffic flowing around him. A collision resulted when a passenger car tried to pass the garbage truck on the left at the same time that Petitioner moved his truck forward to try to complete his maneuver. After an investigation, Petitioner's supervisor, who is black, decided to demote him to Waste Collector, which resulted in a small decrease in pay, but presumably less-preferred tasks involving more direct contact with solid waste. The supervisor weighed Petitioner's substantial experience with Respondent as a driver against the facts that he could have prevented this accident, even though he did not receive a citation, and that he has had five other preventable accidents while driving Respondent's vehicles. Respondent had previously required Petitioner to take good-driving courses on three occasions due to avoidable accidents. He had also been given progressive discipline for his driving mishaps, culminating in an eight-day suspension for his last accident, which was in December 2004. Petitioner claimed to his supervisor that he had done nothing wrong, that he had not violated any rules, and that everyone drives like he did. The supervisor was unfavorably impressed by his failure to accept responsibility for the accident and his nonchalant attitude. The supervisor legitimately concluded that this attitude combined with Petitioner's driving history unreasonably raised the risk of additional accidents caused by Petitioner. Petitioner's attempt to show disparate treatment was unpersuasive. Either similar discipline was imposed for a similar number of similar offenses, supervising personnel were different, or the similarity of past offenses could not be determined. Petitioner's supervisor testified that she did not demote him because he is Hispanic, and this testimony is credited.
Recommendation Based on the foregoing, It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2009. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Eric A. Rodriguez, Esquire Office of Dade County Attorney 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1930 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on 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 June 6, 1994, licensed to practice veterinary medicine in the State of Florida. Respondent holds license number VM 6466 issued by the Board of Veterinary Medicine (Board). Respondent supports his family by practicing veterinary medicine. He is the family's sole wage earner. At its March 14, 2006, meeting, the Board took action, in Case No. 2003-93234, to suspend Respondent's license for 30 days. Following the meeting, but before the issuance of the Board's final order, Respondent's attorney, Bradford Beilly, Esquire, telephoned the Department of Business and Professional Regulation (Department) attorney who prosecuted the case before the Board, Drew Winters, Esquire. Mr. Beilly informed Mr. Winters that he would be filing, on behalf of Respondent, an appeal of the Board's final order, as well as a motion for stay, with the Fourth District Court of Appeal. Mr. Beilly then asked Mr. Winters if the Department would be opposing the motion for stay. Mr. Winters responded that he would "talk to others at the Department and get back to [Mr. Beilly]." When Mr. Winters "did get back" to Mr. Beilly, he told him that "the Department was not going to object to a stay." Mr. Winters and Mr. Beilly then had a discussion regarding what would happen if Respondent practiced veterinary medicine between the time the Board's final order took effect and the stay was obtained. Mr. Beilly misunderstood Mr. Winters to have said during their discussion that the Department would not "treat [Respondent's] practicing veterinary medicine from the [time] that the order was rendered and filed in Tallahassee to the time the appellate court issued . . . the [s]tay as practicing veterinary medicine under a suspended license." At no time did Mr. Winters ever make such a representation to Mr. Beilly.5 Mr. Beilly subsequently "advised [Respondent] of [his] discussion with Mr. Winters and told [Respondent] that there [would] not [be] a problem with him practicing between the entry of the final [order] and entry of the [s]tay."6 The Board entered its original Final Order in Case No. 2003-93234 (Original Final Order) on March 28, 2006. Mr. Beilly received a faxed copy of the Original Final Order the following day. On March 30, 2006, Mr. Beilly, on behalf of Respondent, filed a notice of appeal and motion for stay with the Fourth District Court of Appeal. The Fourth District Court of Appeal granted the motion for stay on April 4, 2006. Between March 28, 2006, and April 4, 2006, Respondent openly engaged in the practice of veterinary medicine. No charges were brought against Respondent for having practiced veterinary medicine with a suspended license during this seven-day period, inasmuch as the Department did not "catch [him] practicing." On July 25, 2007, the Fourth District Court of Appeal affirmed in part and reversed in part the Original Final Order, holding as follows: Based upon the above, the order of the Board is affirmed to the extent that it determined that Dr. Aleong's failure to timely file his request for an administrative hearing operated as a waiver of his right to such a hearing, and to the extent that it rejected Dr. Aleong's claim that the doctrines of equitable tolling and excusable neglect relieved him of the consequences of his untimely request for a hearing. The Board's order is reversed to the extent that it imposed a penalty greater than that provided for in the disciplinary guidelines, and the matter is remanded for the Board to either impose a penalty within the guidelines or to make written findings which support the imposition of a harsher penalty. Aleong v. Department of Business and Professional Regulation, 963 So. 2d 799, 802 (Fla. 4th DCA 2007). On remand, the Board chose not to impose a lesser penalty. Its Amended Final Order in Case No. 2003-093234, which was filed with the Clerk of the Department on April 7, 2008, read as follows: THIS CAUSE came before the Board of Veterinary Medicine (Board) on March 18, 2008, in Ft. Lauderdale, Florida, for consideration upon a remand from the District Court of Appeal of the State of Florida, Fourth District. In its written opinion the Court affirmed this Board's Final Order filed on March 28, 2006, in all regards except with respect to the penalty imposed. With respect to the penalty, the Court reversed the penalty and remanded the case to the Board with directions that the Board either impose a penalty within its disciplinary guidelines or make written findings which support the imposition of a harsher penalty. The Board chooses the latter. Section 455.2273, Florida Statutes, requires the Board to make written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty. The Board finds that the aggravating circumstances which justify imposing a harsher penalty are as follows: Respondent has had two prior actions taken against his license by this Board. Those cases are DBPR Case Number 2001-04949 and DBPR Case Number 2003-057847. [See Rule 61G18-18.001(4)(c), Florida Administrative Code.] One of the violations in the previous case[s] was the same violation as the violation is this case: failing to keep accurate medical records as required by Section 474.214(1)(ee), Florida Statutes, and Rule 61G18-18.002, Florida Administrative Code. (Case Number 2[0]0[1]- 04949)(T26)[See Rule 61G18-18.001(4)(i) and (j), Florida Administrative Code.] Respondent admitted on the record at the hearing that he had not timely complied with the Final Order in a case which had come before the Board just six months prior to the meeting at which the penalty in this case was imposed. (T26, 28)[See Rule 61G18- 18.001(4)(c), (h), (i), and (j), Florida Administrative Code.] Furthermore, Respondent was on probation at the time the instant case came before the Board for action. (T28)(See Rule 61G18- 18.001(4)(h) and (j), Florida Administrative Code.] The discussion by the Board members clearly indicated that the Board believed Respondent was not "getting the message" that he had to comply with the regulations. As expressed during the discussions, "So I think that we have to send a message, a strong message that he has to do that from now on." (T27)(See also T 28). And later in the discussion, another Board member asked: How can we leave a message that he has to have complete [sic] the complete record so another veterinarian can go behind you and know exactly what was done to that horse day by day, document whether the horse - or not document what he saw, how he came to that conclusion. If a dog comes in I can't say he is sick and this is what I did. I have to say, well, he was limping on his right front limb. I have to explain it, or whatever, you have to document how you came to those conclusions. (T31)[See Rule 61G18-18.001(4)(f)(j)(a), Florida Administrative Code.] WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT: Respondent shall pay COSTS of $542.42, FINES of $3,000.00, and take and pass the applicable laws and rules examination at Respondent's own expense no later than thirty (30) days after the filing of this Order with the Department's Clerk. Payment of said costs and fines shall be mailed to the Board of Veterinary Medicine, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, FL 32399-0792. Respondent shall be required to take an additional five (5) hours of continuing education related to the area of medical records within six (6) months after the filing of this Order. Respondent's license is suspended for a period of thirty (30) days. This Final Order shall take effect upon being filed with the Clerk of the Department of Business and Professional Regulation. At the end of the Amended Final Order was the following "Notice of Right to Judicial Review": A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Department of Health [sic] and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within thirty (30) days of rendition of the order to be reviewed. Respondent and Mr. Beilly attended the March 18, 2008, meeting at which the Board decided to take the action it subsequently memorialized in the Amended Final Order. After the meeting, Respondent authorized Mr. Beilly to seek appellate review and a stay of the Board's action. Mr. Beilly received a copy of the Board's Amended Final Order on April 9 or 10, 2008, and he faxed a copy to Respondent, who read it. After receiving the Board's Amended Final Order, Mr. Beilly spoke with Jennifer Tschetter, Esquire, the Department attorney who "would be handling the appeal of the [A]mended [F]inal [O]rder." Ms. Tschetter advised Mr. Beilly that the Department "would have no objection to a stay of the [A]mended [F]inal [O]rder being entered" by the appellate court. During their conversation, Mr. Beilly and Ms. Tschetter did not discuss whether Respondent would be able to lawfully practice prior to the entry of the appellate court's stay. It is undisputed that "Respondent practiced as a veterinarian at Calder Race Track and at other venues, [from] April 10 [three days after the Amended Final Order took effect] through April 2[3], 2008."7 There is no evidence that Respondent's practicing veterinary medicine during this period of time resulted in damage to any person, animal, or thing. At the time Respondent engaged in this activity, he believed, based upon the advice that he had previously been given by Mr. Beilly, that he was not doing anything wrong. It was his understanding that he "had 30 days to file an appeal [of the Amended Final Order] before [his] license was suspended" and that he "was allowed to practice while he applied for an appeal [and a] [s]tay." On April 23, 2008, upon being informed by a Department investigator that his license was "under suspension" and that he therefore was "not allowed" to practice, Respondent "stopped working." Respondent immediately telephoned Mr. Beilly, who filed, on behalf of Respondent, a Notice of Administrative Appeal of Amended Final Order and a Motion to Stay with the Fourth District Court of Appeal that same day, April 23, 2008. The appeal was docketed as Case No. 4D-08-1624. On April 24, 2008, the Fourth District Court of Appeal issued the following order in Case No. 4D-08-1624: BY ORDER OF THE COURT: ORDERED that appellant's motion filed April 23, 2008, for stay pending appeal on expedited basis is granted. The enforcement of the Amended Final Order rendered on April 7, 2008, by the State of Florida Board of Veterinary Medicine is stayed pending the disposition of the above-styled appeal. Respondent's appeal of the Amended Final Order is still pending. On May 15, 2008, Department Investigator Russell Lambert sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-028603: Alleged violation of FSS 474.213(1)(e) use [of] a license that has been suspended. On 4/22/08 and 4/23/08 a sweep was conducted at the Ocala Breeders Sale. On 4/23/08, the Gainesville investigative office was notified that the Resp[ondent] was possibly working there and that his license had recently been suspended. On 4/23/08 at approximately 7:00 AM, investigators observed Dr. Aleong enter stall number 60, Building 17 and scope a horse with HIP Number 1025 owned by a person known as Hal Hatch. After Dr. Aleong completed the process and exited the stall, investigators approached him and referenced the status of his license, at which time Dr. Aleong stated that he was not aware that his license had been suspended. Dr. Aleong's wife, Pamela, was also present and advised that the horse was being scoped for her sister Christine Wasilewski. On May 20, 2008, Department Investigator Beatriz Caldera sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-029108: Alleged Violation of F.S. 474.213(1)(e) practicing on a suspended license. On 4/24/08 Investigator Caldera visited Calder Race Track and found evidence which revealed that Dr. Aleong treated and prescribed medicine for horses at the track between 4/10/08-4/24/08. Dr. Aleong's license was suspended at the time. The Administrative Complaint that is the subject of the instant proceeding was filed in DBPR Case No. 2008-029108 on or about August 26, 2008. On November 13, 2008, Department Assistant General Counsel Elizabeth Duffy, Esquire, sent a letter to Respondent's attorney, Mr. Beilly, advising him of the following concerning DBPR Case No. 2008-028603: Please be advised the above-referenced case [DBPR Case No. 2008-028603] has been reviewed by the Department and closed without a finding of probable cause to believe your client violated the provisions of chapter 474, Florida Statutes, and/or the rules promulgated pursuant thereto. The case has been closed without prejudice[;] if the Department receives additional evidence or determines, upon further review, that the determination to close was in error, the Department reserves the right to reopen the case. If the case is reopened, you will be promptly notified. As this case has been dismissed without a finding of probable cause, the materials included within the file are confidential and may not be disclosed to the public without your written permission. Please contact me if you have any questions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) finding Respondent guilty of violating Section 474.213(1)(e), Florida Statutes, and Section 474.214(1)(f), Florida Statutes; (2) suspending his license for a period of 17 days; (3) fining him $1,000.00; (4) placing him on probation for a year; and (5) ordering him to reimburse the Department's investigative and prosecutorial costs. DONE AND ENTERED this 1st day of July, 2009, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2009.
The Issue Whether Petitioner has just cause to terminate Respondent from employment as a bus driver, a non-instructional position.
Findings Of Fact Background The School Board is the duly authorized entity responsible for the operation, control, and supervision of all public schools (grades kindergarten through 12) in Hernando County, Florida, and for otherwise providing public education to school-aged children in the county. § 4(b), Art. IX, Fla. Const. At all times material to this proceeding, Respondent was employed by Petitioner as a bus driver, a position she held for approximately 16 years. Bus drivers are considered educational support or non-instructional employees. The School Board has adopted a Safe Driver Plan that applies to all bus drivers. All bus drivers receive a copy of the Safe Driver Plan annually, and are required to sign the Safe Driver Acknowledgement Form indicating that he/she has reviewed and understands the plan. The Safe Driver Plan specifically provides guidelines for assignment of points based on alleged driving-related incidents and maximum number of points that may be assigned for each violation. A recommendation for disciplinary action is based on the number of points assigned during a 12-month time period. Under the Safe Driver Plan, the recommendation for disciplinary action for the designated points within a 12-month period is as follows: 1-4 points, a documented warning; 5- 6 points, a one-day suspension without pay; 7-9 points, three days’ suspension without pay; and 10 points, recommendation for termination. Pursuant to the Safe Driver Plan, the Review Board “assesses points for any violation or incident/crash from 0 through 10 following the approved point system outlined in the plan.” Specifically, the Review Board, made up of five members, as designated by the Safe Driver Plan, is responsible for reviewing driver incidents, determining whether the incidents were preventable or unpreventable, listening to any evidence provided by the driver regarding the incidents, and assessing points pursuant to the Safe Driver Plan. The Review Board does not have discretion regarding the recommendation made to the driver’s site administrator. Regarding assignment of points, the Safe Driver Plan provides in relevant part: If court action is required to determine fault in an incident/crash, and the assignment of points would be five (5) points or less, the driver shall not be assigned points until court action is taken. Effective date of points assigned shall be the date of the violation. * * * If a driver is assigned points, he/she will be informed of the assignment of points by the Safe Driver Review Board in writing. The driver may then accept the point assignment or he/she may appeal the assignment of points to the Coordinator of Safety and Security. When points are assessed by the Review Board, the driver who is the recipient of the points has an opportunity to appeal the decision. The Safe Driver Plan includes an appeal process which provides, in relevant part, the following: The driver must inform his/her supervisor in writing of their decision to appeal within five working days of notification of assigned points. The request shall state the driver’s objections to the assignment of points in detail. The supervisor shall then forward the request for appeal to the Coordinator of Safety and Security. A driver who chooses to appeal the assignment of points will be given a copy of all accident information for their review by the investigator prior to the date of the meeting. This will give the driver the opportunity to review all information that will be presented at the hearing and prepare for the hearing in order to rebut any of the information that will be presented. It will also give the driver the opportunity to present testimony and information to the Coordinator of Safety and Security or to offer an explanation of mitigating circumstances prior to points being upheld. After the Safe Driver Review Board’s final recommendation of administrative action is made and any driver’s appeal is heard, all disciplinary action taken by the driver’s supervisor must follow the School Board approved disciplinary policy. For purposes of this matter, the driver appeals the assignment of points to William Hall, the manager of fire, safety, and security. Mr. Hall testified that he reviews all of the information submitted by the driver, and if there is additional evidence or mitigating circumstances that were not before the Review Board, he would meet with the driver for a hearing. If there is no new evidence or mitigating circumstances, Mr. Hall then unilaterally determines the appeal based on the documents. After a driver has exhausted the appeal process, a driver, who is facing a potential suspension or termination based on the accumulation of points, may appeal the coordinator’s decision by using the School Board’s approved complaint process. For purposes of this matter, that appeal goes to the supervisor of professional standards, Matthew Goldrick, who serves as the designee for the superintendent and handles the driver’s predetermination meetings. At the predetermination hearing, the driver is given an opportunity to present any information that she wants prior to any decision being made for a suspension or termination. The superintendent then decides whether to proceed with a recommendation for discipline. The School Board has adopted policy 6.37, which establishes standards for the separation, discipline, and discharge of non-instructional employees, including Respondent. Paragraph (5)(d) recognizes three categories of offenses and a guide for recommended penalties. Relevant to this proceeding are the offenses and recommended penalties for Group III. The penalty for Group III offenses carry a recommended penalty of "up to discharge" for the first violation. The School Board has charged Respondent with violating the Safe Driver Plan by accumulating 10 points within a 12-month period, which results in a recommendation of termination. Respondent was also charged with a violation of a Group III offense, namely accumulating disciplinary actions, no one of which standing alone would warrant discharge. The accumulation of points resulted from four driving violations, which are discussed further below. Driving Violations On Tuesday, December 8, 2015, Respondent was issued a traffic citation for careless driving while operating her bus. Respondent did not immediately report the citation as required by the Safe Driver Plan. On January 6, 2016, the Review Board reviewed Respondent’s December 8, 2015, incident. The Review Board assessed Respondent with a violation for “[f]ailure to report an incident/crash or citation, no matter how minor, while operating a School Board vehicle immediately during regular working hours and as soon as reasonably possible after working hours,” a Category 3 violation. The Review Board determined the incident was preventable and assigned Respondent 10 points. Respondent appealed the Review Board’s assignment of 10 points for the December 8, 2015, incident. On January 21, 2016, a Safe Driver Appeals Meeting was held before Mr. Hall. As a result of the appeal, Respondent’s assigned points were reduced to four points. On April 25, 2016, Respondent was involved in an accident while operating her bus. The Review Board met and assigned Respondent the maximum of two points for improper backing, a Category 25 violation of the Safe Driver Plan. The assessment brought Respondent up to six points in a 12-month period. Respondent did not appeal this assessment of points. On May 23, 2016, Respondent was issued a citation for running a red traffic light signal. On September 14, 2016, the Review Board reviewed Respondent’s alleged violation from May 23, 2016, at which time the Review Board listened to Respondent’s evidence and reviewed the available video. The Review Board determined that the video reflected that Respondent failed to obey the red light traffic signal, a Category 13 violation of the Safe Driver Plan. While such a violation could result in a maximum of four points under the Safe Driver Plan, the Review Board assigned Respondent two points for the violation. The Review Board’s assignment of points placed Respondent at an accumulated eight points for the past 12-months. Mr. Handzus and Mr. Goldrick credibly testified that court action was not necessary to determine fault because the video clearly depicted Respondent failing to obey the red light. On September 14, 2016, Respondent wrote a letter to Mr. Hall seeking to appeal the assessment of two points for failure to obey the red light traffic signal. In the appeal letter, Respondent indicated her objection to the assessment in detail by stating that she ran the red light, because she “had almost no choice but to go through it.” Mr. Hall denied her request for an appeal.1/ Respondent was brought in for a predetermination hearing as part of the disciplinary process because her eight points in a 12-month period would result in a three-day suspension. After the predetermination hearing, and listening to Respondent’s arguments, the recommendation was made to suspend Respondent for three days without pay. Respondent did not appeal the disciplinary action resulting in the three-day suspension.2/ On October 26, 2016, after having been reinstated from her suspension, Respondent was involved in an incident on Deer Run Road where she backed her school bus into a mailbox. On November 7, 2016, the Review Board assigned Respondent the maximum two points for improper backing, a Category 25 violation of the Safe Driver Plan. This was Respondent’s second violation for improper backing. On November 7, 2016, Respondent timely sent a letter to Mr. Hall timely requesting an appeal of the assessment of two points for the October 26, 2016, incident. In the letter, Respondent explained in detail her objection to the assessment of the points by stating that on “[t]he morning of 10/26/2016 at 5:30am . . . I hit a mailbox” and that “[w]hile backing up [she] hit the mailbox.” Mr. Hall reviewed the appeal letter and denied the request for appeal. Mr. Hall testified that he denied the request for appeal because there was no information in the letter that would mitigate Respondent’s conduct and there was an admission regarding the violation. However, Mr. Hall’s actions were a direct contradiction to the appeal process as expressly written in the Safe Driver Plan. The Safe Driver Plan does not provide Mr. Hall the authority to unilaterally deny a driver’s “request for an appeal” or exercise discretion in granting or denying an appeal. Ms. Rodgers was entitled to an appeal so long as she made that request in writing within five days of notification of the assigned points. Respondent complied with that requirement. The appeal process also provides that Respondent would be entitled to a copy of all information for review prior to the date of the meeting to prepare for hearing and given an opportunity to present testimony and mitigation before the points are upheld. Mr. Hall testified that he considered the comments in Respondent’s letter as mitigation. However, under the Safe Driver Plan appeal process, mitigating evidence would be offered at the hearing, not in the notice of appeal letter. Further, the driver checklist in items 7 through 9 restates the procedure as outlined in the appeal process. Simply put, the appeal request letter is only required to include details regarding any objection, nothing more. Mr. Hall did not properly comply with the appeal process in the Safe Driver Plan as written. Pursuant to the Safe Driver Plan, “[c]hanges to the plan may not be implemented without Board approval.” There was no evidence offered at hearing that the written Safe Driver Plan had been changed. Mr. Hall improperly denied Respondent’s request for an appeal and, thus, improperly upheld the Review Board’s decision to assess the two points for the October 26, 2016, violation. Based on the alleged accumulation of 10 points within a 12-month period, Respondent appeared for a predetermination meeting regarding the recommendation for termination of employment. At the predetermination meeting, Respondent was provided the opportunity to offer any mitigating circumstances to the recommendation for termination. The recommendation for termination included the assessment of the two points for the October 26, 2016, incident. Mr. Goldrick considered Respondent’s arguments and determined that there were no mitigating circumstances that would warrant discipline short of termination. The record does not include evidence regarding the mitigation considered by Mr. Goldrick. Following the predetermination meeting, on January 3, 2017, the School District’s superintendent notified Respondent by letter of the recommendation to terminate Respondent’s employment for misconduct. Respondent timely disputed the allegations in the Notice and requested a hearing to appeal the recommendation of termination. By letter dated January 20, 2017, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective January 25, 2017, and referral of her appeal to the Division of Administrative Hearings. At the January 24, 2017, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. The evidence at hearing demonstrates that Mr. Hall improperly denied Respondent’s request for an appeal of the October 26, 2016, violation. However, given the procedural posture of this case the undersigned has considered whether the Review Board appropriately assigned the two points for the October 26, 2016, incident. The undersigned finds evidence of mitigation in the record. The record demonstrates that on October 26, 2016, Respondent had been driving a new, unfamiliar route for approximately two days before the incident. Respondent stated in her request for appeal letter that it was “pitch-black outside” and her ability to turn was impeded by an oncoming vehicle using its high beam lights. After considering the above mitigating factors, the undersigned finds that the evidence in the record does not warrant a deviation from the Review Board’s assignment of the standard two points for the October 26, 2016, improper backing violation. The evidence supports that the assignment of two points against Respondent for the October 26, 2016, incident was appropriate. The mitigation did not warrant reduction of the points assessed. As a result, the record correctly demonstrates that Respondent accumulated 10 points. Petitioner demonstrated by a preponderance of evidence that there is just cause to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order terminating the employment of Mildred Rodgers as a bus driver. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2017.
Findings Of Fact On March 22, 1995, Southern was convicted of the commission of a public-entity crime, as defined within Subsection 287.133(1)(g), Florida Statutes. Southern pled guilty to one count of 18 U.S.C., Section 371, Conspiracy to Defraud the United States, in the United States Court for the Middle District of Florida. Pursuant to Subsections 287.133(3)(a) and (b), Florida Statutes, Southern made timely notification to DMS and provided details of the convictions. On September 20, 1995, DMS issued a notice of intent, pursuant to Subsection 287.133(3)(e)1., Florida Statutes. On October 3, 1995, pursuant to Subsection 287.133(3)(e)2., Florida Statutes, Southern timely filed a Petition for Formal Administrative Hearing to determine whether it is in the public interest for Southern to be placed on the State of Florida Convicted Vendor List. Subsection 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the Convicted Vendor List. Subsection 287.133(3)(e)3.d., Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. Southern paid restitution, fines and court costs totaling $30,193.00. Subsection 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. According to Ernest F. Peluso, Assistant United States Attorney, since early in 1994, George Peterson, President of Southern, provided active, accurate and meaningful support to the federal investigation. Mr. Peterson willingly provided documents, records and statements to illuminate the extent of the conspiratorial plan. Mr. Peterson fully cooperated with DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Subsection 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. This subsection is not applicable. Subsection 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or Florida affiliate to prevent public entity crimes" as a mitigating factor. Southern retained Michael N. Kavouklis, Esquire, to act as an ombudsman or clearinghouse for the receipt of information pertaining to any wrongdoing involving the solicitation of compensation or gratuities to customers. Each employee has received a copy of a notice directing them to report such actions to Mr. Kavouklis. The notice has also been posted in the work place as a reminder. Subsection 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. Southern was not debarred from contracting with any governmental entity. Subsection 287.133(3)(e)3.i., Florida Statutes, establishes "[c]ompliance by the person or affiliate with the notification provisions of paragraph (a) or paragraph (b)" as a mitigating factor. Southern provided notice of the public entity crime violation by letter on February 17, 1995. This occurred before its conviction on March 22, 1995. Subsection 287.133(3)(e)3.j., Florida Statutes, establishes "[t]he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. Public entities have a frequent and continuing need for roofing services. Subsection 287.133(3)(e)3.k., Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. Southern provided numerous documents detailing its involvement in numerous community and charitable activities. This Joint Stipulation provides a full and complete factual basis for determining whether Southern should be placed on the Convicted Vendor List. In light of the facts and criteria set forth in subsection 287.133(3)(e)3.a.-k., Florida Statutes, there are no disputes issues of material fact between DMS and Southern which would require a formal hearing. Both parties concur that it is not in the public interest to list Southern on the Convicted Vendor List, pursuant to Section 287.133, Florida Statutes.
The Issue The issue in this case is whether the Department of Children and Families (DCF) should fine the Respondent for alleged violations in the operations of two child care centers in Lakeland.
Findings Of Fact The Respondent, Faith Without Works, Inc., d/b/a The Early Years CDC, is licensed by DCF to operate a child care facility at 5100 U.S. Highway 98, North, and at 2933 Duff Road, both in Lakeland. The Respondent's license certificate for the Highway 98 facility is C10PO0696; its license certificate for the Duff Road facility is C10PO0799. The charges in this case pertain to the Highway 98 license, C10PO0696. Late License Renewal The Respondent's annual license for Highway 98 was due to expire on December 14, 2013. On November 4, 2013, the Respondent's principal, Elizabeth Jackson, telephoned DCF on behalf of the Respondent to report that no renewal packet had been received. Normally, DCF sends licensees a renewal packet in time to file a renewal application at least 45 days prior to the license expiration date (i.e., by the filing deadline). The evidence was not clear why the Respondent had not received the packet. The Respondent picked up a renewal packet from DCF and filed its renewal application on November 6, 2013. There was no evidence of an affirmative misrepresentation from an authorized DCF employee that reasonably led the Respondent to delay filing its license renewal application. At best, there was evidence that the Respondent's license renewal application was late in 2011, but that no fine had been assessed. In that year, the Respondent asked DCF in early December as to the whereabouts of the renewal packet and was told that one had been sent on October 27, 2011. The Respondent then reported to DCF that a renewal packet was received on December 10, 2011, four days before expiration of its annual license, but the packet pertained to a different licensee. The Respondent picked up a renewal packet from DCF and filed for renewal. The Respondent was not fined for late renewal that year. Children Left in Van On October 18, 2013, the Respondent's van driver took a four-year-old boy and his one-year-old sister home from the Highway 98 facility. On the way, he stopped at the Duff Road facility to drop off a box lunch. He parked the van in front of the building, very close to the door, went inside briefly, returned to the van to get what he was delivering, and brought the delivery into the building. He then returned to the van and continued on his way to deliver the children to their destinations. During the time he was at the Duff Road facility, the driver left the two children in the van with the engine running. The driver recalled: that the door to the facility was unlocked; that he entered the building the first time just to announce his presence; that the entire delivery process took just 30 seconds; and that the Duff Road facility staff was watching the van from the door the entire time. The Duff Road employee testified that the door was locked; that she interrupted her lunch break to unlock it and hold the door open; and that she was watching the van from the doorway the entire time. An employee of the Early Learning Coalition, who happened to drive up for a scheduled appointment just before the van arrived, testified that she saw no one at the door; that she could see the older child squirming in his seat; and that the children were left alone in the van long enough for her to make her observations, telephone her supervisor, report her observations, and ask what she should do, which probably took considerably longer than 30 seconds. A child protective investigator testified that she learned from interviews with the driver, the older child, and the child's father that the child had a history of removing, or attempting to remove, his seat belt and moving about, or attempting to move about, while in vehicles. However, the evidence was not clear and convincing that the driver, who was a new employee, knew the child's propensities in that regard. During the incident and the investigation on it, the Respondent accepted DCF's expression of concern that the driver's conduct could have resulted in serious harm to the children. The Respondent blamed the incident on the driver being a new employee, who was a school bus driver but was inexperienced transporting preschool children. The Respondent reprimanded the driver and required him to take training in transporting young children. The driver was appropriately remorseful and welcomed the training as being appropriate and helpful. All involved were grateful that no actual harm to the children occurred. In its defense of the charge and during the hearing, the Respondent took the position that there was no serious harm, or threat of serious harm, based on the testimony of the driver and the Duff Road employee. The Respondent attempted to impeach the testimony of the protective investigator, that the driver did not mention the purported supervision by the Duff Road employee during her interview of him, by eliciting that the investigator did not directly ask whether staff was watching from the door. However, in the context of the interview, the driver would have been expected to offer that information had it been true. Overall, the contemporaneous reaction and statements of all involved belie the Respondent's current position and the referenced testimony of its witnesses. It is found that the driver's conduct posed an imminent threat that serious harm could have occurred. The boy could have climbed out of his seat and gotten out of the van, which may not have been detectable by staff standing at the front door to one side of the van, or started playing with the van's gear shift and accelerator, which also may not have been observable from that vantage point, even assuming staff was monitoring the van the entire time. Employee Work History Not Checked The driver of the van on October 18, 2013, had Level 2 screening, but there was no documentation that his work history was checked. On July 16, 2012, during a routine DCF inspection, it was revealed that the Respondent had three employees whose work history had not been checked at the time. DCF provided "technical assistance" by telling the Respondent that all employees should have their two-year history checked before starting work, which should be documented. At the time of this earlier violation, DCF gave the Respondent a formal warning stating its intent to take administrative action if further violations of the standard were found. Employee Not Screened On July 19, 2013, the Respondent employed Desaundra Oldfield, who did not have Level 2 screening at the time. In its defense against this charge, the Respondent took the position that Ms. Oldfield was a participant in the Welfare-to-Work Program of Polk Works and was screened through that program. However, it is clear that Ms. Oldfield did not get required Level 2 screening until July 20, 2013. On March 19, 2013, the Respondent was unable to produce documentation that Regina Curtis, who was employed for 30 days and also a parent of a child at the daycare center, had Level 2 screening. The Respondent's defenses at the time of the hearing were that Ms. Curtis was a participant in the Polk Welfare-to- Work Program, and also that she was no longer employed on March 19, 2013, so that on-site documentation was not required. However, the evidence was clear and convincing that Ms. Curtis did not have required Level 2 screening during the time she was working for the Respondent. Non-compliance was noted. Since Ms. Curtis no longer was employed, nothing further was done in the way of technical support. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Inadequate Supervision On June 7, 2013, a DCF inspector responding to an unrelated (and unfounded) complaint observed a single employee in charge of a room of 19 four-year-olds having a party. While the employee's back was turned to help one child in the adjoining bathroom, the other children were jumping off tables and playing with balloons. One parent was in the room with the other children while this was going on, but the parent was not an employee, was not screened, and did not have her work history checked. A balloon burst while in a child's mouth, and the DCF inspector attended to the child to make sure the child did not swallow the burst balloon and choke. On October 26, 2012, a DCF inspector responding to an unrelated (and unfounded) complaint came upon a child in a room by himself. Unnoticed, the child left the room where he was being supervised by an employee of the Respondent to look for candy and was in an adjoining room when seen by the DCF inspector. According to the inspector, when she returned the child, the employee indicated not knowing the child had left. During the hearing, the Respondent asserted that the employee saw the child walk around the DCF inspector, undetected, and enter the adjoining room. The defense was not supported by any competent evidence and was not presented in the Respondent's proposed order. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Safety Violation Rule 65C-22.002(1)(a) and (b) requires child care facilities to be free from health and safety hazards and not be used for any activity that endangers the health and safety of children. DCF proved a violation of this rule during a routine inspection on August 14, 2013, because several electrical sockets did not have required safety plugs. This was a Class III violation. DCA also proved by clear and convincing evidence two previous violations of this rule, one on June 7 and another on July 19, 2013. After the earlier violations, DCF gave technical support; after the second, DCF gave the Respondent a formal warning stating its intent to take administrative action, if further violations of the standard were found. Selective Enforcement Defense The Respondent asserts as an additional defense that it was the victim of selective overzealous and picayune enforcement because of the personal prejudices and animosity of certain DCF personnel for various reasons, including that the Respondent licensed a second facility (at Duff Road) and intended to expand further. The evidence did not prove the alleged prejudice and animosity, or selective enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding the Respondent guilty of the alleged violations and fining the Respondent a total of $475. DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2014. COPIES FURNISHED: Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen I. Meeks, Esquire Meeks, Lewis and Cabrera, P.A. Post Office Box 1598 Bartow, Florida 33831-1598 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17, North Bartow, Florida 33830-7646
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of an alleged violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty.
Findings Of Fact Respondent currently holds a Class "D" Security Officer License, Number D92-08606, issued pursuant to Chapter 493, Florida Statutes, effective June 2, 1994. During September and October of 1994, Motivated Security provided security services to Shurgard Storage, located at 1650 West Oakland Boulevard, Fort Lauderdale, Florida. On September 30, 1994, the Respondent was employed as a security officer by Motivated Security. On that date the Respondent's assigned post with Motivated Security was at the Shurgard Storage premises described above. On that date, the Respondent was assigned to the 6:00 p.m. to 2:00 a.m. shift. At approximately 11:15 p.m. on September 30, 1994, while the Respondent was on duty at the post described above, the Respondent was sound asleep in a golf cart for a period of at least one-half hour.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the violation charged in the Administrative Complaint and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner. Paragraphs 1 through 6: Accepted. Paragraphs 7 through 11: Rejected as subordinate and unnecessary details. (All of these proposed details are essentially correct; it is simply not necessary to repeat them.) Findings submitted by Respondent. (None.) COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Gerald Brown 3551 N.W. 41st Street Lauderdale Lakes, Florida 33309 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
