The Issue Whether Respondent, the holder of a Class "D" Security Officer License, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent holds Class "D" Security Officer License Number D94-17752, which was issued pursuant to Chapter 493, Florida Statutes, effective October 17, 1996, to October 17, 1998. At the times pertinent to this proceeding, Respondent was employed by Navarro Security. On February 11 and 12, 1997, Respondent was on duty at a security post, during the evening hours, at William Lehman car dealership located in Broward County, Florida.1 That car dealership was a client of Navarro Security. Respondent's duties at this security post included patrolling the premises in a motorized golf cart. Respondent was not permitted to sleep while on duty. On February 11, 1997, Respondent was found by Corey Targia, a supervisor (captain) employed by Navarro Security, to be asleep in his own vehicle at approximately 3:34 a.m. Respondent was supposed to be on duty at that time. Respondent did not wake up until Mr. Targia knocked on the window of the vehicle. On February 12, 1997, Respondent was again found by Mr. Targia to be asleep while he was on duty. On this occasion, Mr. Targia found Respondent at approximately 3:52 a.m. sleeping in a car owned by the dealership. A sign advertising the sale of the car was positioned in a manner to obscure Respondent's presence in the vehicle. Mr. Targia called by radio Mike Crutcher, another supervisor (lieutenant) employed by Navarro Security, and asked Mr. Crutcher come to the site with a camera. Mr. Crutcher arrived at the site and observed Respondent sleeping. Respondent awakened before Mr. Crutcher could photograph him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Class "D" Security Licensed be revoked. DONE AND ENTERED this 20th day of March, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of March, 1998.
The Issue Whether the School Board was bound to renew respondent's contract, once the Superintendent nominated him to continue as General Director of Security? If not, whether good cause exists to reject the nomination?
Findings Of Fact The Duval County School Board's security office is responsible for coordinating and maintaining an incident reporting records system, collection and cross-checking school employees' criminal records, conducting various internal investigations and for "coordination and monitoring of the security alarm systems ... " Respondent's Exhibit No. 5, p. 13. As associate superintendent of personnel for the Duval County School Board, before he became superintendent in 1976, Herb A. Sang had hired James W. Heard to head up the Board's security operations. Eleven years later, Superintendent Sang learned that law enforcement officers who worked under Mr. Heard's supervision (although they were furnished to the School Board under an agreement between the Board and the Sheriff's Office) were using School Board cars "moonlighting ... for stores like May Cohens." (T. 200-201) On this account, and because of "concerns about theft inside," (T. 201) Mr. Sang decided to create a new position to oversee security for the School Board. Mr. Heard enjoyed civil service protection, and stayed on. When respondent Richard M. Davis became the first person to hold the new position, he was known as general director of security and Mr. Heard began reporting to him. Mr. Davis had gone to work for the F.B.I. upon graduation from law school, and only left to take the job with the Duval County School Board, where he began on December 28, 1984. Continuously since 1970, he had had supervisory duties. As the School Board's General Director of Security, he supervised, in addition to Mr. Heard, three clerical employees, Linda Hancock, Lorraine Hampton and Agnes Carlyle; and several investigators, including Robert Dickinson, Jack Adams, Thomas Tawes, Messrs. Poston, Hogan, Harrington, Dixon, and Miller. SONITROL Soon after respondent Davis began work with the School Board, he relieved James W. Heard of responsibility for overseeing Sonitrol's installation of security systems. He took on this responsibility himself, although he shared the duties with Jack Adams until school opened in the fall of 1985. Mr. Davis never discussed "the problems of the Sonitrol system," Mr. Heard deposition, P 75, with Mr. Heard. He never asked Mr. Heard's advice, and Mr. Heard volunteered none. When Mr. Davis began as general director of security, Sonitrol of Jacksonville, Inc. (Sonitrol) had already installed 82 alarm systems in 73 of the some 140 schools the Duval School Board operates, in accordance with a contract entered into, perhaps in 1982. Heard deposition, P. 52. In early 1985, another system was installed at another school. On April 15, 1985, the School Board approved installation of 71 more Sonitrol alarm systems. In separate action the same month, the Board approved installation of two other systems for a total of 73 systems for 66 sites. At the schools selected, systems were installed to monitor the school office, the computer room, other places where high dollar items are" (T.I. 132) and "major entries," id., but many classrooms went unmonitored in order to keep costs down. Installation of such a system entails attaching metal plates or "door-contacts" on doors opposite like plates on jambs. Wires are then run so that, when current is supplied, opening the door breaks an electrical circuit, which "registers in the control panel that's in the school ... [which panel) transmits that information in code form over a telephone line to ... [the central monitoring station ... (T.II. 153, 154) In addition, up to 16 "preamps," audio sensors known loosely as microphones, can be wired to each central panel so that sound is also transmitted to the central monitoring station, if the noise level rises above a certain level. How best to use a limited number of preamps varies from building to building, depending on, among other things, where noise-generating equipment is located. Once they are in place, the system is calibrated to avoid transmissions of routine, background or "ambient" noise, sounds emanating from water coolers, fluorescent lights, cooling and heating systems and other "internal" sources. Anybody with the access number can turn the alarm system on and off. Systems ordinarily remain off during the school day. Once their work is completed, the custodial staff turn them on for the night. At least at night, a school board employee monitors a video display terminal on which "PE" indicates that a perimeter entry" has been effected, i.e., that a door has opened. When sound picked up by an audio sensor is transmitted to the central monitoring station, "AU" appears on the screen while the sound is reproduced on a loudspeaker. Next to "PE" or "AU" appears a number corresponding to the school or other facility at which opening a door broke a circuit or from which sound is transmitted. The audio transmissions are recorded and can be replayed by the monitor who must decide whether something is amiss. Computerized storage equipment creates a permanent record on magnetic tape of all "occurrences ... any time there is an activation audible or perimeter entry or code ... when someone comes in the school, when someone leaves the school, or the telephone line falters and the system redials, whatever transpires out there " (T.II. 160) Under its agreement with the School Board, Sonitrol was to furnish school board personnel a detailed, written plan for each school involved, and, once the security chief approved the plan, to install the system. Installation has three phases: Physical Installation - This is complete when the school has been wired, and the control unit, microphones and door contacts installed. On-Line - This is complete when the Contractor has "powered the system up" and performed tests on the microphones. Operational - This is complete when access numbers have been issued and the systems are monitored by the central monitoring board at the administration building. Petitioner's Exhibit No. 10, p. 2. Under the Board's agreement with Sonitrol, Sonitrol undertook "[e]quipment installation, testing and training within ninety (90) days after receipt of purchase order," Petitioner's Exhibit No. 1O, p 4, but witnesses testified that, after physical installation was accomplished, and the contractor had tested the system, it was the School Board, not Sonitrol, who was "to go out and train the operators, deliver the code cards." (T.I. 157) Although programmed and "on line," a system might not be operational if, for example, conduit ... has not been installed ..." (T.II. 168) The School Board was responsible for installation of a sufficient number of telephone jacks. Sonitrol agreed to maintain the systems for a monthly fee "for twelve (12) months from date or completion of installation and operating condition (including training and testing.) Petitioner's Exhibit No. 10, p. 2. The agreement called for preventive maintenance at least quarterly, and specified that "system failure due to normal wear or telephone failure is covered under your service contract." Petitioner's exhibit No. 10, p. 4. Prior to January 1987, the School Board did not keep records of what preventive maintenance Sonitrol performed. When Mr. Heard oversaw Sonitrol's installation of alarm systems, he and the principal or head custodian of the school involved would walk the school to see if the equipment was in and installed as it was supposed to be, that it was all there; and we would test it for them. When Mr. Gallagher called me and said, "We've got school number so-and-so on-line. We're going to test it for a week," they would before we actually put it on-line. And we would test it down in the monitoring room, and then they'd fine tune it and get the noisy areas out and so forth. And at the end of a week or ten days, it would be on-line at that point, then we started paying for maintenance ... ... they put it on-line, and we'd monitor it. They'd have people down there during that night and listen to it. And if there was a noise problem with it, then they'd do what they called fine-tune it. They'd go out there and try to locate what the noise was. They night have to relocate a mike a little further away from the heater or something of this nature Heard deposition, pp. 56, 57. Before December of 1984, Mr. Heard told the clerical staff "whenever a school was put on-line." Carlyle deposition, p. 47. In some instances Sonitrol began billing for maintenance for systems even before they were operational. As far as the evidence showed, those systems were "on line" before billing for their maintenance began and, in fact, required maintenance. If the monitor learned of a problem with a system after it had become operational, she notified Sonitrol and made an entry in a log book to that effect. Sonitrol made a monthly report of maintenance it performed. After Mr. Davis became General Director of Security, significant delays attended the transition from "on-line" status to "operational" status. Charges incurred for maintenance of systems before they become operational aggregated more than $13,000 for the period between September 1, 1985 and March 31, 1987. Especially without the contract in evidence, however, the proof does not establish that these moneys constituted an overpayment to Sonitrol for maintenance. But, even if these moneys were not overpayments to Sonitrol, they nevertheless may be said to represent part of the cost of the delays in rendering systems operational after Sonitrol had completed its work in installing them. The School Board also lost the protection operable alarm systems would have afforded after their physical installation but before they became operational, although the evidence established no burglary losses attributable to the delays. As General Director of Security, it was respondent Davis' responsibility to see that "on line" systems became operational as promptly as practical. In December of 1986, Mr. Davis left off overseeing installation personally and turned this task back over to Mr. Heard. At that time, 40 some systems were "ready to be completed and ready to go on line that needed to be put on-line." Heard deposition, p. 62. Of these, "about 16 or 17 ... were ready ... had things to be done to them before they could be put on- line." Id. Seven or eight systems had been installed, at least partially, for 18 months or longer but were not operational. Forest and Paxon high schools each lacked a phone jack that was needed and "there was some conduit that had to be run on one of the systems in order to complete the installation of it." - (T. 63) The System at Normandy Village Elementary School had been in place since May of 1986, but had been struck by lightning, and needed to be reprogrammed in December of 1986, when Mr. Heard inspected. The system at Stillwell Junior High School also needed to be reprogrammed. As far as the evidence shows, no burglaries occurred at any of these seven or eight schools while their systems were not operational. The School Board paid invoices aggregating $470 "for phone line problems, replacing batteries,... [and] for service calls when no problems were found." Petitioner's Exhibit No. 10, p. 4. Whether these charges were proper under the contract between Sonitrol and the School Board is not clear from the evidence. The contract was not offered in evidence, although excerpts are quoted in Petitioner's Exhibit No. 10. Sonitrol sometimes received payment for equipment before it was installed. In these instances, the School Board lost the use of various sums for varying periods. The evidence does not establish what these sums or how long these time periods were. A NEW BOSS When he first began, Mr. Davis called a meeting with the investigators in which he told them that Mr. Heard would continue to supervise them and that nothing would change, in that regard. This was the last meeting in which all the investigators were invited to participate. Ms. Hancock, who had worked for Mr. Heard for ten years, had grown used to the way Mr. Heard did things and felt very loyal to him. She was upset to an extent, when Mr. Davis took charge of the security staff, although she became his secretary. She was also offended at his apparent lack of confidence in her, and chagrined that he sent work to typists elsewhere in the building. She believed these typists avoided her, because he did. Heated arguments between Mr. Davis and Messrs. Dickinson and Tawes proved distracting, and Ms. Hancock took umbrage at some of Mr. Davis' profanity, although his language "improved over time. (T.45) On two or more occasions, Mr. Davis yelled at someone in the office in the presence of other employees. Heard deposition, P. 40. He "hollered" at Mr. Dixon after discovering that the latter failed to apprise him of a teacher's arrest. Once Mr. Davis came to the investigator's office door and started yelling, "Goddamn you son of a bitches. If you aren't happy here, transfer your asses out of here." He was just ranting and raving. Tawes deposition, p. 27. Once he upset Ms. Hampton by shaking a telephone message "in front of ... [her] face," Carlyle deposition, p. 33, rebuking her, although without raising his voice, in the presence of others, for failing to take down a caller's telephone number. SHOP TALK At least until December of 1986, Respondent Davis daily employed "all of the normal vulgarity type words" (T. 61) including "fuck quite regularly, God damn" (T. 60) and "son of a bitch." Id. Ms. Hancock does not believe in taking "the Lord's name in vain" (T. 41) and does not think "fucking, any of those type words ... should be said around a lady." (T. 42) Mr. Davis' language also displeased Ms. Carlyle and Ms. Hampton, Carlyle deposition; Heard deposition, p. 17, but nobody ever spoke to Mr. Davis about it, as far as the record shows. He did not actually swear at the clerical staff as far as the evidence shows. PERSONNEL CHANGES After working for Mr. Davis for more than two years, Ms. Hancock applied for a transfer in February of 1987. He first learned of her intention to leave when she told him she had secured another position. At no time did Ms. Hancock ever voice any complaint to Mr. Davis about working conditions. When Mr. Davis started, the security department had two vacancies. One had existed for about a decade, and the other for more than a year before Mr. Davis began, having arisen when an investigator retired. Both remained unfilled at the time the present charges were made. The perennially vacant position was kept on the books at the direction of senior administrators as a means of enhancing the department's budget. Robert C. Dickinson, a law enforcement officer, had been "assigned to School Board Security" (T. 59) for six years then Mr. Davis began working there. He, too, stayed on another two years, but he did not leave voluntarily. Sheriff McMillan transferred him to patrol duty in response to Mr. Davis' request made both by telephone and in writing on December 17, 1986, that he do so. In his letter of that date to the sheriff, Mr. Davis explained the basis for the request: On December 15, I proceeded to the public parking lot at the intersection of Southside Boulevard and Baymeadows Road, where I parked in order to observe the entrance to the Jacksonville Country Day School. At approximately 7:52 a.m., I observed Detective Dickinson, stopped southbound on Southside Boulevard, at the traffic light. He had a passenger in the right front seat that I must presume was his daughter, whom I have heard him say attends Jacksonville County Day School. He made a left turn into the school grounds. At about 7:54 a.m, he exited the school driveway, turning north onto Southside Boulevard. Again, on December 16, 1986, I waited in the same location. At 8:01 a.m., I observed Detective Dickinson turning into the school grounds from Southside Boulevard, again with the same young female passenger. He exited the school driveway at 8:03 a.m., again turning north on Southside Boulevard. On both days I observed Detective Dickinson he was operating a 1985 Ford Crown Victoria, 4 door sedan, color white, bearing Florida tag 307-EUS, vehicle 6019, his assigned unit for School Security. Naturally, the observations are of great concern to me, since he is supposed to be in a duty status at 7:3O a.m, and was supposed to be checking various Duval County school buses for safe driving, equipment and student conduct, while the buses are on the roadway. Further I was quite dismayed to see the two "Activity Reports" submitted by Detective Dickinson - for the dates of December 15 and 16, 1983. These reports indicate he was checking buses from 7:30 a.m. to 8:15 a.m., on December 15, 1986, and from 7:30 a.m. to 8:20 a.m., on December 16, 1986, when in fact he was using a vehicle of the Duval County School Board to transport his daughter to her private school. The fact that he included such erroneous information on an official document gives me cause to doubt his veracity and I do not feel he is the type of individual that should be assigned to the School Security Department. Copies of the "Activity Reports" are attached. In addition on December 17, 1986, I was in the office when I observed Detective Dickinson walking out of the door. I asked him where he was going. He responded "To the cafeteria. I asked what he was doing in the office and he replied "paperwork." I also inquired as to his whereabouts earlier in the morning and he responded "Why checking buses like I always do." I then requested that he go to his desk and do the "paperwork" instead of the cafeteria. He walked to his desk and I went into my office. Shortly, I heard him slam the telephone into the cradle, I asked him what the noise was about and he said it was the phone and he had slammed it down because he was unable to reach his party. I then cautioned him against such rough treatment of the equipment He immediately put his hand, palm out, toward me as if to warn me away, and he sarcastically commented that I had started the whole thing by making comments during a recent School Board meeting that "they" were not cooperating. I told Detective Dickinson that we were not talking about that, but about his rough treatment of the telephone, He responded "0kay, you got it. Whatever you want. I regard this last incident as a poor reflection upon an experienced law enforcement officer. His conduct and demeanor was antagonistic, rude, and unprofessional. Coupled with his actions on December 15 and 16, 1986, I have concluded that Detective Dickinson is not the type of person that should be representing the School Security Department or working with the student and staff population of the public schools. I would appreciate your removing him immediately and replacing him as soon as possible. Mr. Davis had decided to lie in wait across the street from the Jacksonville Country Day School after a neighbor told him the child regularly arrived in a school board vehicle. At hearing Mr. Davis testified that Officer Dickinson's "work was not in question," (T. :11.132) characterizing much of it as "an outstanding and excellent job." Id. According to Mr. Davis, Officer Dickinson is intelligent and well-spoken. Officer Dickinson's testimony that he did in fact follow school buses as he drove his daughter to school on December 15 and 16, 1986, was credible and credited. The transfer was accomplished while Officer Dickinson was away on vacation. He learned about it from his brother who had read of it in the newspaper. With respect to the personal use of school board vehicles, respondent testified that he was "sure that every one of those investigators, including our people who work at night as security officers, have probably used the car to accomplish a personal errand or something of a personal nature." (T. 134) He himself had driven a school board car to his dentist's office and to a barber shop during the work day. With respect to his tonsorial outing, he testified, [M]y hair grows on the school board time and I don't feel remiss in getting it cut once in a while on school board time," (T. 135) although more recently he had opted for Saturday afternoon haircuts. By Thomas Nathan Tawes' count, "Mr. Davis ... used harsh profanity towards," Tawes deposition, p. 9, Mr. Tawes on four occasions. In January of 1985, Mr. Tawes, a school board investigator, ran a red light and caused a traffic accident. The following day Mr. Davis informed him that he had received a report that Mr. Tawes was "drinking prior to the accident and...high on drugs," Heard deposition, p. 11, and said "I'm going to have to investigate it. We've got a complaint." And [Tawes] said, "I would like for Captain Heard to be in here, sir. " [Davis] said, "No. I'm your goddamn supervisor." [Tawes] said, "Sir, I would like for Captain Heard to be in here." [Davis] said, "You son of a bitch, I'm your goddamn supervisor." [Tawes] said, "Sir, I would like for Captain Heard to be in here." [Davis] said, "Well, then, goddammit, go get him." Tawes deposition, p. 11. Mr. Tawes felt he had a right, under a collective bargaining agreement, for his immediate supervisor to be present. In June of 1985, Mr. Tawes found a note on his desk from Mr. Davis, directing him "to go to a Class 3 hearing," id. p. 18, involving a case of alleged sexual battery at Sandalwood High. Mr. Tawes went to Mr. Davis' office and objected to attending, saying he had been excused from such hearings before. In the course of their conversation, Mr. Davis used "goddamn" and "son of a bitch." Tawes deposition, p. 19. Mr. Tawes left Mr. Davis' office and refused to return, even when Mr. Davis said, "goddamn, I'm sorry. Now, get back in my goddamn office." Tawes deposition, p. 20. As Mr. "Tawes stormed out of the office without Mr. Davis' permission," Heard deposition, p. 51, Mr. Heard entered the suite of offices. Mr. Davis told Mr. Heard what had transpired. At Mr. Heard's urging, Mr. Tawes apologized. Heard deposition, pp. 49-50. Sometime before Christmas of 1985, Mr. Davis swore at Officer Tawes again, in discussing delays Mr. Tawes had encountered in trying to secure an interview with a bus contractor. At an unspecified time during the 1985-1986 school year, Officer Tawes brought Mr. Davis an investigatory report. While he stood in the doorway of Mr. Davis' office, Mr. Davis swore at him and said, Just go have a seat in your damn office." Tawes deposition, p. 28. In December of 1986, at Mr. Davis' request, Officer Tawes was transferred back to the Jacksonville Sheriff's Office. He gave neither Tawes nor Dickinson any counselling or advance notice of their transfers. Office morale reached its nadir in the wake of these transfers. SCHOOL FIRE On November 26, 1986, Robert E. Lee High School caught fire. Fire alarms failed to sound, and nobody at the central monitoring station heard sounds of fire or detected other evidence of fire, even though the fire did "several million dollars worth of damage." (T. I. 159) As one result, the school board hired a former Sonitrol employee, Barrett Miller, to investigate "implementation of the Reston report, the Sonitrol contract and Underwriters' Laboratory standard as it applied to the public school installations." (T. I. 112, 127) The Reston report, Respondent's Exhibit No. 5, entitled "School Security Needs Assessment" came into existence "a couple of years before," Heard deposition, p. 52, Mr. Davis began as director of security, but only came to his attention some time in early 1985 after he had begun. Among numerous other recommendations, the Reston report recommended that: The incident reporting system and several other security files should be automated so that better information is available for feedback to schools and facility planners, as well as for security tactics (e.g., movement of alarms); ... Respondent's Exhibit No. 5, p. 22. Although Mr. Davis learned of the report in a conversation with Superintendent Sang, neither Mr. Sang nor anybody else directed him to implement any of the report's recommendations.. When he originally read the automation recommendation, Mr. Davis "didn't know enough ... about the incident reporting system to know whether ... [automation] was justified ..." (T. 37, 38) In January or February of 1987, however, having decided that it was justified, he "requested and received a budget allocation for the acquisition of data base hardware" (T. II. 28) for the purpose. In late 1986, he had discovered problems with manual compilation of the incident reports. On or about October 10, 1986, Ms. Carlyle furnished Mr. Davis a memorandum she had drafted, styled, "SECURITY DEPARTMENT ACTIVITY REPORT FOR 1985/1986 SCHOOL YEAR," Respondent's Exhibit No. 2, purporting to summarize losses the School Board had sustained from vandalism, theft and arson that year and offsetting recoveries. In fits and snatches, over the course of a month or six weeks, Mr. Davis checked this draft against incident reports in the office files, the supposed source of the information compiled in the draft. Discovering apparent discrepancies, Mr. Davis mentioned the matter to Superintendent Sang, who directed David E. Wilson, Assistant Superintendent in charge of finance, to cause an audit of the incident reports to be performed to test the draft report's accuracy. The audit confirmed Mr. Davis' suspicions. In order to produce an accurate report, Mr. Davis turned all of the incident reports over to Mr. Wilson's staff, who entered the data into a computer and generated a report dated January 30, 1987, which the School Board received. The Board had never set a deadline for submission of these reports. In previous years it had been submitted as late as October after the school year ended. (T. II. p. 22) WASTING TIME He assigned Mr. Heard supervision of "officers on their day-to-day investigation." Heard deposition, p. 23. Mr. Heard also "check[ed] employee application records or criminal records for school employees that had been arrested," id., until he received a memorandum dated December 30, 1985, which "restricted [him] to the office.." Id. The memorandum stated Effective immediately, you will no longer conduct the record checks for criminal charages or dispositions ... Your duty post is in the security offices in the School Board Administration Building. Should you believe it necessary to leave the building on official business, you should discuss the need with me for approval. Respondent's Exhibit No. 2 to the Heard deposition. Supervising investigators in the field from his office was "second best," Heard deposition, p. 27, Mr. Heard felt, but he saw the investigators at the end of the work day and took telephone calls from them during the day. On more than ten occasions while the December 30, 1985 directive was in force, students or others came on school grounds with firearms. Mr. Heard felt he should have been on the scene personally, but he never sought approval to go. Even so, Mr. Heard "c[ould]n't say that it caused any specific loss to the schools," Id., p. 29, his being required to supervise from the office. But that was not enough to keep him busy. He found himself spending up to five hours a work day unproductively, reading the newspaper, talking to the clerical staff, and so forth. This idleness was particularly unfortunate in light of the alarm systems that required attention. Mr. Heard was ill part of this time. He missed 50 some working days between January and October of 1986.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED; That the School Board reject the Superintendent's nomination of the Respondent Richard M. Davis as General Director of Security. DONE and ENTERED this 27th day of January, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1988. COPIES FURNISHED: James L. Harrison, Esquire Steven E. Rohan, Esquire Gail A. Stafford, Esquire Office of the General Counsel 1300 City Hall Jacksonville, Florida 32202 Lamar Winegeart, III, Esquire Mahoney, Adams, Milam, Surface & Grimsley, P.A. Post Office. Box 4099 Jacksonville, Florida 32201 Herb A. Sang Superintendent of Schools Duval County Public Schools 1731 Prudential Drive Jacksonville, Florida 32207
The Issue The issue is whether Respondent obtained a real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact By application attested July 10, 1996, Respondent requested licensure as a real estate salesperson. Question 9 of the application asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records may have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." * * * Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent checked the "no" box and did not offer any explanation on the application form. Petitioner issued Respondent a license. After placing it for a month with another broker, Respondent placed the license with Sun Coast Realty Group, Inc., a broker-corporation trading as Century 21--Sun Coast Realty Group, in Fort Myers. Respondent's license remained active until October 6, 1997, when he requested that Petitioner inactivate the license until the pending disciplinary charges were resolved. Respondent's broker testified at the hearing. He testified that the customers were happy with Respondent, who dealt very honestly with the customers. The broker explained that Respondent, not the broker, elected to discontinue practicing real estate sales until the disciplinary matters were resolved, and the broker would rehire him, if Respondent retains his license, following the conclusion of this proceeding. On or about December 19, 1977, Respondent pleaded no contest and was convicted of a misdemeanor of disorderly conduct or breach of the peace in connection with a bar fight in which he was engaged in Connecticut. Then aged 20, Respondent was employed as a bouncer at the bar at which a fight broke out. Several arrests ensued. Respondent did not throw the bar stool that resulted in the injuries. Respondent was fined about $50. About 12 years later, on or about February 1, 1989, Respondent pleaded no contest to misdemeanor battery in Lee County. The court withheld adjudication and placed Respondent on probation for one year. Respondent served the probation without incident. No one was seriously injured in the incident. About three years ago, Respondent attended Charter Glade, where he remained 10 days for substance-abuse treatment. He attended his follow-up therapy, and now speaks to his pastor at church for additional advice. Respondent has not consumed alcohol since then, and he has a wife and two children. Respondent's claim that he did not disclose the criminal matters because he thought they had been sealed or expunged is discredited. Respondent concealed these matters. He did not follow the advice on the application form to ensure that these matters were sealed or expunged. He testified inconsistently at first as to his age at the time of the first incident. On the other hand, Respondent has eliminated the main source of his past problems: alcohol. He has also demonstrated his integrity in the practice of real estate sales.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of a violation of Section 475.25(1)(m), Florida Statutes, imposing an administrative fine of $1000, and suspending Respondent's license for 18 months, with full credit against the suspension for the period since October 6, 1997, that Respondent has voluntarily rendered his license inactive due to the pendency of this proceeding. DONE AND ENTERED this 8th day of December, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Laura McCarthy Deputy Chief Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Edward McBride Cardillo, Keith & Bonaquist, P.A. 3550 East Tamiami Trail Naples, Florida 34112-4905 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license and a Class "G" statewide firearms license. He has held the former license since May of 1990 and the latter license since September of that year. He has never before been disciplined by the Department. From October of 1991, until June 23, 1993, Respondent was employed by Certified Security Services, Incorporated (hereinafter referred to as "Certified"), a business which provides armed and unarmed security services. Among Certified's clients during the period of Respondent's employment was Winn-Dixie Store No. 343 (hereinafter referred to as "Store 343"), located at 14900 Northwest 6th Avenue in Miami, Florida. Respondent was assigned by Certified to work as a uniformed security guard at Store 343. He regularly drove a cashier at the store named Maria home from work in his car. On the afternoon of June 23, 1993, at around 1:00 or 2:00 p.m., Respondent was standing in the store parking lot conversing with a patron of the store, Sylvia Malgarejo, when he was approached by Maria, who was carrying a package containing a box of Pampers and a bottle of cooking oil. Respondent had no reason to, nor did he, believe that Maria had misappropriated these items from the store. Maria asked Respondent to put the package in his car. Respondent complied with Maria's request. He then continued his conversation with Malgarejo. The conversation did not last long. Olga Campos-Campbell, the store's general merchandise manager, had reported to the store manager that Respondent had shoplifted merchandise from the store. Campos-Campbell and Respondent had an ongoing feud concerning the scope of Respondent's job responsibilities. Campos-Campbell frequently asked Respondent to do things that he believed were outside the scope of his duties as a security guard, and an argument between the two invariably ensued. Based upon Campos-Campbell's erroneous report, the store manager had Respondent detained. Kent Jurney, who assisted the owner of Certified, his wife, in running the business, was contacted and advised of the situation. Jurney responded by going to the store with Certified's general manager, Bill Banco, and confronting Respondent. Respondent's native language is Spanish. Jurney, on the other hand, does not speak or understand Spanish. He communicates in English. Respondent's ability to communicate in English, however, is limited. Respondent tried to explain to Jurney in English how he had come into possession of the Pampers and cooking oil, but Jurney misunderstood him and mistakenly thought that Respondent was admitting that he had stolen the items from the store. Accordingly, he advised Respondent that Respondent's employment with Certified was being terminated effective immediately. The police were also contacted. The police officer who responded to the scene cited Respondent for shoplifting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding the evidence insufficient to establish that Respondent committed the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the instant Administrative Complaint and dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6941 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondent in his post-hearing submittal: 1. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-5. Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 C. Ernest Rennella, Esquire 2524 Northwest 7th Street Miami, Florida 33125 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
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
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact Stipulated Facts Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974. At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant. On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1 At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour. As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender. Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him. On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body. On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been aware of the damage or the repairs being made to the patrol vehicle. On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office. On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee. Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident. Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair. At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident. At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis. Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present. Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting. According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said. As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent. On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation. On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting. Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview. This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2 Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff." While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004). Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall. Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded: Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy? A I'm testifying on my past practice. Q Okay. But you don't have any specific recollection of speaking with him about this incident? A I cannot recall the conversation. Q And you could not swear to actually having notified him in July when this incident happened? A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident. Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff. Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired. When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows: Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of. Lashley: That was during the truancy roundup, correct? Hardy: Correct. Lashley: ...or detail, back in first week in October? Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be. Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said... Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy. DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of December, 2005.
The Issue The issue is whether Respondent misused her position as an Orlando city commissioner by attempting, on May 6, 2006, to influence how the Orlando Police Department (the police department) handled a routine traffic stop involving her son in violation of Subsection 112.313(6), Florida Statutes (2005).1
Findings Of Fact Petitioner is the state agency responsible for regulating compliance with the Code of Ethics applicable to public officers and employees pursuant to Chapter 112, Part III. At all times material to this proceeding, Respondent has been a public officer, a commissioner of the City of Orlando, Florida. Respondent is African-American, as are her two sons Mr. Sean Lynum and Mr. Juan Lynum. At 12:50 a.m., on May 6, 2006, Officer Matthew Ochiuzzo was on duty for the police department patrolling the Paramore neighborhood in Orlando less than a mile from Rock Lake Drive. Officer Ochiuzzo stopped Mr. Juan Lynum because of an inoperable headlight on the vehicle Mr. Lynum was driving.2 Mr. Lynum was driving Respondent’s vehicle home from a fraternity party to Respondent’s residence on Rock Lake Drive in Orlando, Florida. Mr. Lynum shared the residence with Respondent at the time. Neither Respondent nor Mr. Lynum were aware that a headlight on the vehicle was not working. Mr. Lynum telephoned Respondent from his cellular telephone. He informed Respondent that he was being stopped by a Caucasian police officer and expressed his concern that he was the victim of racial profiling. Respondent telephoned then Chief Michael McCoy of the police department at his home and expressed her concern that Mr. Lynum was the victim of racial profiling. Chief McCoy said he would telephone the watch commander on duty and have him deal with the allegation of racial profiling. Respondent then telephoned Officer Roderick Johnson, the police liaison officer assigned to Respondent and an officer first class in the police department. Officer Johnson was engaged in approved off-duty employment to provide security at a local night club. Respondent had time to disclose the general location of the traffic stop and her concern that her son was being racially profiled when she terminated the conversation to take a return telephone call from Chief McCoy. Respondent clearly intended to influence how the police department handled the traffic stop. Respondent did not expressly request intervention in the traffic stop by Chief McCoy or Officer Johnson, but Respondent admits that the purpose of her action was to alert both men to possible racial profiling and to monitor the traffic stop. Respondent used her official position to influence the traffic stop of her son. Both Chief McCoy and Officer Johnson interpreted a telephone call from a city commissioner at approximately 1:00 a.m. in the morning to be a request for action in her official duty as a commissioner.3 The testimony of Chief McCoy is illustrative. Q. Chief, when you received that call from Commissioner Lynum, did you feel you needed to act based on the phone call? A. She’s a Commissioner, yes. Act then, yes. . . . Q. . . . When you answered that she was a Commissioner, what did you mean by that? How did that impact you? A. I used to make the analogy that our Commissioners were our board of directors, because I spent some time in the private sector, and you know, they drive the direction of the city, police department being part of that. So they’re a Commissioner. They’re elected by the people, so, yeah, pay attention to a Commissioner call, as I would a Mayor call. Q. So when you responded to her, were you responding as a friend or as a commissioner? A. As a commissioner. Transcript (TR) at 258-259 and 277. Officer Johnson took it upon himself to call Officer Ochiuzzo, by radio and then by cell phone, during the traffic stop. A call from a city commissioner at approximately 1:00 a.m. motivated Officer Johnson to take action. Officer Ochiuzzo terminated the traffic stop after discussing the matter with Officer Johnson and never spoke to the watch commander on duty during the traffic stop. Officer Ochiuzzo had intended to issue a traffic summons to Mr. Lynum for an inoperable headlight, no registration, and no proof of car insurance. The benefit sought by Respondent in her attempt to influence how the police department handled the traffic stop involving her son was not to prevent her son from receiving a traffic citation. When Mr. Lynum arrived at Respondent’s home after the traffic stop, Respondent discovered that the headlight on her vehicle was inoperable. She telephoned Officer Johnson and asked him to ensure that a traffic citation was forwarded to her. The benefit sought by Respondent was to prevent racial profiling during an ongoing traffic stop by complaining directly to the chief. That was a special benefit or privilege available to Respondent that was not available to a member of the public through the police department’s bias free policing policy. The police department’s bias free policing policy was drafted by legal counsel for the department and was adopted in June 15, 2004. The policy required a member of the public who alleged racial profiling to file a written complaint on a form provided by the department and required the department to investigate the alleged profiling. Respondent was personally familiar with the police department’s bias free policing policy. Respondent was very active in the community, supported the bias free policing policy, and assisted her constituents in processing profiling complaints. Mr. Lynum later filed a complaint of racial profiling pursuant to the bias free policing policy. The police department investigation exonerated Officer Ochiuzzo. Exoneration means the department found Officer Ochiuzzo to be innocent of the charges in the complaint. Exoneration differs from “not sustained” in that the latter means only that the proof is insufficient to support a finding of guilt. When Respondent telephoned Chief McCoy and her liaison officer at approximately 1:00 a.m. on the morning of May 6, 2006, Respondent acted with wrongful intent for the purpose of benefiting another person from an act or omission during an active traffic stop. Respondent acted in a manner that was inconsistent with her public duties. Respondent testified that she called Chief McCoy and Officer Johnson, not in her capacity as commissioner, but as a mother fearful for the safety of her son. Mr. Lynum testified that he sought his mother’s help out concern for his safety at the hands of a Caucasian police officer. The fact-finder finds the testimony of both witnesses to be less than credible and persuasive. Mr. Lynum was on his cell phone when Officer Ochiuzzo approached the vehicle driven by Mr. Lynum. Mr. Lynum virtually ignored Officer Ochiuzzo. The actions of Mr. Lynum in ignoring an investigating officer risked antagonizing the officer and are inconsistent with a person in fear of physical harm. The testimony of Officer Ochiuzzo is illustrative. Q. So what did you do next? A. I exited my patrol vehicle and I approached Mr. Lynum’s car. . . . Q. Okay. What happened next? A. He was on his cell phone when I approached the window and the window was up, and I told him I was conducting a traffic stop and that I needed his license and registration, proof of insurance, and he didn’t respond. Q. So at the initial approach of the vehicle, did you make any other gestures to get the driver’s attention or did you solely use voice commands? A. Voice commands combined with my patrol car lights and chirping of the siren. Q. So when you made these initial voice commands, did the driver respond? A. No. Q. So what did you do next to get his attention? A. . . . I took my flashlight and I tapped the window to get the driver’s attention and instructed him again that I was conducting a traffic stop and I needed a license, registration, proof of insurance. Q. And at that point did Mr. Lynum engage in the traffic stop? A. No. Q. What did he do? A. He ignored it once again. He was on the cell phone. And so I pulled the door open and I told him that I was conducting a traffic stop. I needed his license, registration, proof of insurance. TR at 35-36. Officer Ochiuzzo returned to his patrol vehicle and began writing a uniform traffic citation when he was interrupted by the radio inquiry, which concluded by cell phone, from the liaison officer for Respondent. Officer Johnson informed Officer Ochiuzzo that Officer Johnson was Commissioner Lynum’s liaison officer and that Officer Ochiuzzo had stopped the commissioner’s son. After the conversation, Officer Ochiuzzo terminated the traffic stop. When Officer Ochiuzzo pointed patrol vehicle lights into the rearview mirror of the vehicle of Mr. Lynum, shined a flashlight beam into the vehicle, and kept his free hand on top of his holstered pistol, it was not a threat to Mr. Lynum. It was standard procedure for traffic stops at that hour. When Officer Ochiuzzo was yelling at Mr. Lynum, it was because Mr. Lynum had ignored the officer’s earlier attempts to redirect Mr. Lynum from the cell phone conversation and had failed to lower the window so the officer would not have been required to yell to be heard. Mr. Lynum is an attorney who is familiar with police procedures during traffic stops through instructions from his father who was a law enforcement officer from 1969 through 1987 and ended his career as the chief of the Wildwood Police Department in Wildwood, Florida. Sean Lynum, Mr. Lynum’s brother, is a former officer in the same police department as Officer Ochiuzzo. Respondent is very active in the community and familiar with police procedure. A common safety precaution for a person who suspects he or she is a victim of racial profiling during a traffic stop is to ensure the site of the stop is well lighted and that the person is in contact by cell phone with a person who can be a witness. Mr. Lynum followed both precautions. He stopped in a well-lit area, and he was on his cell phone. Complaints of racial profiling in the area had declined from 23 the year before Chief McCoy became the chief of the department to a consistent annual range of six to eight. Racial profiling was not an issue in the area until after Mr. Lynum made his complaint. The testimony of Chief McCoy is illustrative. This, after the fact, became quite a community event or issue, which sparked a lot of accusations of racial profiling. Our policy had been in effect as long as it’s been in effect. The year before I was Chief, there was like 23 total racial profiling complaints made. The year I became Chief that dropped to like six or eight and that was-–that number was pretty consistent. Even after we had this community event issue, they still never got over 10, total. The key is that if you have a complaint, you need to follow up on it. If people feel like they were stopped simply because they were-–of their race, then you need to do the form and do it right and the officers know that-–or knew that. Q. So, really, it did not become a community issue until after Commissioner Lynum’s son was stopped, racial profiling? A. That would definitely be my perspective . . . . it was not an issue. TR at 278-279.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order and public report finding that Respondent violated Subsection 112.313(6) and publicly censuring and reprimanding Respondent. DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd of February, 2009.
The Issue Whether Respondent, the holder of a Class "D" Security Officer License and a Class "G" Firearm License, committed the misconduct alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the holder of Class "D" Security Officer License D92-01223 and Class "G" Statewide Firearms License G96-01346. At the times pertinent to this proceeding, Respondent was employed as an armed security guard for Wells Fargo Security in Palm Beach County, Florida. His assigned post was at the Community Savings Bank (the Bank) in Riviera Beach, Florida. There was typically only one guard assigned to that post. The Bank is located in a high crime area of Riviera Beach. Respondent was the only guard assigned to the Bank on June 5, 1996. Respondent was on duty at the Bank from 7:00 a.m. to 7:00 p.m., five days a week. He was to provide security for all five floors of the main bank building, an adjacent single story building that contained supplies, and the parking areas. His duties included escorting Bank personnel and customers between the parking areas and the Bank, and he was required to carry a radio so that Bank personnel could contact him when someone needed an escort. The radio he carried had a radius of 1.5 miles. At the times pertinent to this proceeding, Michael Ross was employed by Wells Fargo and had direct supervisory authority over the Respondent. Mr. Ross instructed Respondent that he could leave the Bank premises only to pick up a sandwich. He was instructed to take his breaks and eat his lunch on Bank premises. On June 5, 1996, Respondent was on duty at the Bank. At approximately 11:00 a.m. that day, Mr. Ross spoke with Sheila Owens, the bank's operation manager, in an effort to locate the Respondent. Mr. Ross wanted to discuss with the Respondent certain changes in the work schedule. Ms. Owens advised Mr. Ross that she would attempt to locate Respondent and that she would call him back. A few minutes later, Ms. Owens called Mr. Ross and told him that she could not locate Respondent. Mr. Ross became concerned that the post was unattended. Because the Bank is in a high crime area, he was also concerned that the Respondent may have become the victim of an act of violence. Mr. Ross drove to the Bank, arriving at approximately 12:30 p.m. on June 5, 1996. He and Ms. Owens searched the entire Bank premises. Mr. Ross attempted to contact Respondent by radio and by Respondent's personal beeper number. The page Mr. Ross left for Respondent was not returned. Mr. Ross tried to locate the Respondent for approximately two hours. He called the Riviera Police Department because he feared for Respondent's safety. Two Riviera Police Department cars arrived at the scene at approximately 2:30 p.m. on June 5, 1996. About the time the police arrived, Mr. Ross saw Respondent walking through the Bank's parking lot. Respondent told Mr. Ross that he had been at a beeper store that was approximately 200 yards from the Bank. That explanation is not credible because Respondent could have been contacted by radio if he had been within a mile and a half of the Bank. Respondent was absent from his post without credible explanation for at least two hours on June 5, 1996. Wells Fargo thereafter lost the security contract it had with the Bank.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class “D” Security License be revoked. It is further recommended that no action be taken against Respondent's Class "G" Statewide Firearm License. DONE AND ENTERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1997 COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Mr. James B. Brown 1031 West 1st Street Riviera Beach, Florida 33404 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
