Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:27 AM Division of Administrative Hearings DONE AND ORDERED this Ay day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this QQ day of May, 2013. tes Vorecvcte Nalini Vinayak, Dealer Ficense AE NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@pbfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 Jim.vogler@bfkn.com Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, Petitioner, Case No.: 13-0007 vs. VOLKSWAGEN OF AMERICA, INC., Respondent. / NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Petitioner, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, by and through its undersigned counsel and hereby files this Notice of Voluntary Dismissal with Prejudice regarding its pending Petition Protesting Charge-back of Incentive Payments, pursuant to settlement of this matter. I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the parties as reflected on the attached Service List, this 13" day of May, 2013. s/ A, Edward Quinton, III (Florida Bar No. 464074) ADAMS, QUINTON & PARETTI, P.A. Attorneys for Petitioner 80 SW 8™ Street, Suite 2150 Miami, Florida 33130 PH: (305) 358-2727 Email: equinton@adamsquinton.com Filed May 13, 2013 3:24 PM Division of Administrative Hearings SERVICE LIST Jennifer Clark Office of the Hearing Officer Florida Highway Safety & Motor Vehicles Neil Kirkman Bldg. - Room A-308 Tallahassee, Florida 32399-0635 jenniferclark@flhsmv.gov James R. Vogler, Esquire John C. deMoulpied, Esquire Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 jim.vogler@bfkn.com john.demoulpied@bfkn.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC., d/b/a LOKEY VOLKSWAGEN, Petitioner, vs. Case No. 13-0007 VOLKSWAGEN OF AMERICA, INC., Respondent. ~~~ rere rere re rere rr ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner’s Notice of Voluntary Dismissal with Prejudice, filed May 13, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 18 through 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. va bay THOMAS P. CRAPPS 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 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbaum, and Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@bfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, LLP Suite 3900 200 West Madison Street Chicago, Illinois 60606 jim.vogler@bfkn.com
The Issue On September 10, 1992, the State of Florida Commission on Ethics issued an order finding probable cause that Respondent, as a Law Enforcement Airplane Pilot II with the Florida Highway Patrol, violated sections 287.17(1) and 112.313(6), F.S., by inviting or allowing persons not traveling on official state business to fly as passengers on a state aircraft piloted by Respondent. The issue here is whether those violations occurred, and if so, what discipline or penalty is appropriate.
Findings Of Fact Stipulated Facts In a prehearing conference, the Advocate for the Commission and the attorney for Adriance entered into and filed with the hearing officer, the following factual stipulations: At all times pertinent to this Complaint, Respondent was employed as a Law Enforcement Airplane Pilot II with the Florida Highway Patrol and was Chief Pilot of the Florida Highway Patrol. At all times pertinent to the allegations contained in this Complaint, Kathleen Greenwood was an employee of the Florida Highway Patrol and a member of the Florida Highway Patrol Auxiliary. At all times pertinent to the allegations contained in this Complaint, James Amodeo was an inmate in custody of the Florida Department of Corrections housed at the Loxahatchee Road Prison in West Palm Beach and a trustee assigned to assist the Florida Highway Patrol. The Department of Corrections released prisoners on low security trustee status to the Florida Highway Patrol to serve in various unskilled labor capacities. One of the terms of this arrangement was that prisoners would not be left unsupervised, and Respondent was aware of this requirement. On October 12, 1989 and January 18, 1991, Respondent invited or allowed James Amodeo to fly with him in a state aircraft. Between March 1989 and November 1990, Respondent invited or allowed Kathleen Greenwood to fly with him in a state aircraft on a number of occasions, six of which are at issue in this Complaint. The Comptroller's Office has calculated that the cost for Ms. Greenwood and Mr. Amodeo to travel on these flights totaled $780.38. [As stipulated at hearing, the amount reflected is not an additional cost over and above the normal operation of the aircraft but is derived by dividing the number of passengers on the aircraft by the hourly rate of operating the aircraft.] Respondent was aware that Florida Highway Patrol policy required that he list all passengers in the state aircraft on State of Florida, Department of General Services Special Purpose Aircraft Flight Records. The flights taken by Barry Adriance and documented in Advocate's Exhibits 3-10 were for justified business reasons, and Adriance performed the duties of a pilot related to those flights, except in some instances failing to list all passengers on the flights. Findings of Fact Based on the Record At the time of the conduct in question, Barry Adriance had served with the Florida Highway Patrol for approximately nineteen (19) years. In 1980 Adriance was assigned as a pilot by the Patrol. In 1986, Adriance became the Patrol's chief pilot. As a pilot with the Florida Highway Patrol, Adriance was required to work traffic on the highways, conduct surveillance of individuals and stolen vehicles, search for marijuana fields, relay information related to traffic control and disabled vehicles, and transport individuals as directed by the Patrol. When Adriance became chief pilot, he assumed various administrative and supervisory responsibilities for the Florida Highway Patrol flight program. The duties included responsibility for training of pilots and observers. Adriance was also responsible for the initiation of flight programs for the Patrol such as its "Lowjack" program for tracking stolen vehicles and a disabled vehicle patrol program. Adriance flew Florida Highway Patrol aircraft on patrol duties almost daily. He was stationed in West Palm Beach and operated out of a facility shared with the Palm Beach County Sheriff's Office commonly known as "Eagle Base." When Adriance became a chief pilot he was assigned the development of the Florida Highway Patrol Aviation Unit Operations Manual, including the passenger/observer program outlined in Sections A.U. 5.09.00-A.U. 5.09.02 of the manual. The passenger/observer program was established as a safety program after various officials, including representatives of the Federal Aviation Authority, expressed concern that the duties of the Patrol pilots while in the air might keep them from observing other air traffic in their air space. The Florida Highway Patrol observer program had two types of participants: (1) those individuals who received formal training, such as other law enforcement personnel and Florida Highway Patrol Auxiliary members, and who flew for a specifically assigned purpose, and (2) those individuals who received informal training, such as private citizens or fellow Patrol employees, and who flew essentially to provide an additional margin of safety for the pilots. The individuals who served as observers in order to provide the pilots an additional margin of safety did not normally receive formal training. These individuals were generally instructed by the pilot at the time of the flight to observe the air space around the aircraft and report any other aircraft or unusual activity in the area. The observer program was fully approved by the Florida Highway Patrol, and the use of observers was largely a matter of pilot discretion. Adriance was an enthusiastic supporter of the program as he had experienced a couple of near collision incidents while flying alone. In addition to the observer program, the Florida Highway Patrol Aviation Unit Operations Manual authorized individuals to fly in Patrol aircraft as crew members if the individuals had specific task assignments or assisted the pilot in performing assigned tasks. The Florida Highway Patrol Aviation Unit Operations Manual (1988 Revision) provides in pertinent part, as follows: A.U. 5.09.00 Passengers on Division Aircraft. The pilot shall not engage the Division Aircraft in passenger transportation without approval or request by an Inspector, or higher ranking officer within the Department. Transportation flights are defined as flights for the sole purpose of transporting passengers from one point or location to another. This is not to be confused with any passenger acting as a crew member and on board to complete a task or assignment which requires more than the pilot to complete. EXAMPLE: A Division employee to act as observer or photographer. * * * A.U. 5.09.02 Passengers/Observers on Board Division Aircraft. The Troop Commander or the Chief Pilot may authorize the acceptance of passenger/observers on board Division aircraft providing the observer is over the age of eighteen (18), in good physical health, and necessary for the safe completion of the mission. The purpose of observing the flight or acting as a crew member is to enhance the safety of the flight. All passengers/observers, except department employees or FHPA members, must sign a covenant not to sue waiver prior to any flight in Division aircraft. Pilots may allow bona fide members of the press, judges, or FAA personnel on board for the purpose of observing methods of operation and surveillance, providing the pilot has prior approval from their [sic] respective Troop Commander or the Chief Pilot. Pilots may allow members of the Florida Highway Patrol Auxiliary or other bonded law enforcement officers on board the Division aircraft in operation where the auxiliary member or other law enforcement officer would enhance the safety of the operation. In all cases, authority must be obtained from the Troop Commander or Chief Pilot prior to accepting passengers/observers...In all cases, any passenger/ observer riding in a Department owned aircraft will be appropriately logged on the daily DOS trip log. (Advocate's Ex. #11, emphasis in original) During Adriance's service as chief pilot, the Florida Highway Patrol used trustees assigned from the Florida Department of Corrections to work at its aircraft facility in West Palm Beach. The trustees assigned to Eagle Base performed many duties for the Patrol including fueling of aircraft, maintenance of the aircraft area, and loading of aircraft cargo. On occasion the trustees would fly in the aircraft to assist in the placement and measurement of aircraft check zones on all roadways in the State of Florida between Key Largo and Ocala. The trustees would also fly with the aircraft for safety purposes. James Amodeo was a trustee with the Florida Department of Corrections during the time period of October 1989 through January 1991, and occasionally worked under the supervision of Adriance at Eagle Base. During the same time period, Amodeo worked and flew with several other law enforcement agencies in the Palm Beach area. Amodeo does not like to fly. On two (2) occasions during this period Amodeo flew with Adriance. The first aircraft trip on which Amodeo accompanied Adriance was from West Palm Beach to Ocala, Florida. The purpose of the trip was two-fold: (1) to relay certain camera equipment between Tallahassee and Palm Beach, and (2) to pick up line painting material. Amodeo performed several useful functions on the trip including serving as an observer and assisting in the loading of heavy cargo. He also served as an additional safety factor by monitoring the heavy cargo to ensure it did not shift while the aircraft was in flight. The second aircraft trip on which Amodeo flew with Adriance was from West Palm Beach to Key West, Florida. The purpose of the trip was to measure aircraft speed check zones in the area. Amodeo was to assist Adriance in checking the measurements and loading heavy equipment. During the flight Amodeo became sick and was temporarily left at the Key West airport. While he was left at the airport Amodeo wandered the beach in the vicinity of the airport. Because of conditions beyond Adriance's control, the assignment was cancelled. Adriance and Amodeo then returned to West Palm Beach. Kathleen Greenwood was chief dispatcher with the Florida Highway Patrol in 1989. She was also a member of the Florida Highway Patrol Auxiliary and a certified observer for the Patrol. In early 1989, Adriance and Greenwood developed a personal relationship. The relationship occurred during a time when Adriance was separated from his spouse and it lasted for approximately 1 1/2 years. The relationship was common knowledge within the Florida Highway Patrol and was conducted openly. On at least six (6) occasions between the period of March 24, 1989 through November 11, 1990, Greenwood flew in a Florida Highway Patrol aircraft piloted by Adriance. Greenwood accompanied Adriance on the flights at her request and with Adriance's approval. She served as an observer on these flights and on several occasions had specifically assigned tasks such as fulfilling her auxiliary duties, "Lowjack" training, logging of navigational charts or working on establishment of a CAD (computer-aided dispatch) program. Because of their personal relationship, Adriance enjoyed having Greenwood accompany him as an observer. Adriance admittedly used bad judgement in taking Amadeo on flights. Although the operations manual did not prohibit the use of prison trustees as observers or crew members, the program was not intended to include them. Knowing that the practice of including trustees could be criticized, Adriance sometimes intentionally failed to list them on his flight log. Adriance also regrets taking Greenwood on flights, not because she was not otherwise fully qualified, but because of the disastrous effect on Adriance's personal and professional life occasioned by his relationship with a co-worker.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order dismissing the complaint and finding no violation of section 287.17(1), F.S. or section 112.313(6), F.S., by Respondent, Barry A. Adriance. DONE AND RECOMMENDED this 3rd day of March, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of March, 1994. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-1259EC The following constitute specific rulings on the findings of fact proposed by the parties: The Advocate's Proposed Findings 1. Adopted in paragraph 1. Adopted in paragraphs 14. and 9. Adopted in substance in paragraphs 16. and 17. Adopted in substance in paragraph 8. Rejected as unnecessary and immaterial. 1. Adopted in paragraph 3. Rejected as unnecessary and immaterial. Adopted in paragraph 4. Rejected as unnecessary and immaterial. (no 5. provided) Rejected as unnecessary and immaterial. To the extent that it is offered to prove motive, it fails. The greater weight of evidence established that Adriance and Amodeo were not friends and Adriance was not taking Amodeo on flights as a favor to him. Adopted in paragraph 5. Adopted in paragraph 28. 9.-10. Adopted in substance in paragraph 24. Rejected. The testimony was generally credible, albeit self-serving, and the perceived inconsistencies were generally credibly explained. For example, the Key West airport is near the water and he wandered around the vicinity of the airport. Adopted in paragraph 28. 1. Adopted in paragraph 2. Adopted in paragraph 26. Adopted in paragraph 27. 4.-6. Rejected as immaterial and unnecessary. 1. Adopted in paragraph 9. 2. Rejected as contrary to the greater weight of evidence (as to the implication that Adriance had improper motives). (no paragraph 3) Adopted in substance in paragraph 28, as to the first two sentences; otherwise rejected (as to motive) as contrary to the weight of evidence. Rejected as contrary to the weight of evidence; moreover, the incidental benefit does not supply the requisite "corrupt" intent. See, Blackburn, supra, conclusion of law, paragraph 38. Findings of Fact Proposed by Respondent 1.-18. Adopted in paragraphs 1.-18., respectively. Adopted in paragraph 20. Adopted in paragraph 25. 21-23. Adopted in paragraphs 26.-27., in substance. 24. Rejected as cummulative. Adopted in substance in paragraphs 21.-24., respectively. Rejected as cummulative. Adopted in paragraph 28. COPIES FURNISHED: Virlindia Doss, Esquire Department of Legal Affairs Ethics Commission The Capitol, PL-01 Tallahassee, Florida 32399-1050 Gene "Hal" Johnson, General Counsel Florida Police Benevolent Association, Inc. Post Office Box 11239 Tallahassee, Florida 32302 Bonnie Williams, Executive Director Commission on Ethics P.O. Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics P.O. Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Vernon St. Charles is a radio teletype operator I with the Florida Highway Patrol and is a career service employee with appeal rights with the Career Service Commission. On or about November 1, 1977, St. Charles was the radio teletype operator on duty at the Florida Highway Patrol Tampa District Office. While he was on duty, an accident occurred involving a young child. St. Charles dispatched a Florida Highway Patrol trooper to the scene of the accident who reported that the child was very seriously injured. The trooper requested a homicide investigator be dispatched which St. Charles did. G. Ronald Stroud is a sergeant with the Hillsborough County Sheriff's Department assigned the duty of investigating accidents involving school-age children as a part of the Department's safety program. Sergeant Stroud received notification from the radio dispatcher of the sheriff's department that an accident had occurred near a school involving a child which Florida Highway Patrol Units were investigating. Sergeant Stroud called the Florida Highway Patrol District Office and spoke with St. Charles. Sergeant Stroud identified himself and asked about the accident and how old the child was to determine whether he should follow up the accident for the Hillsborough County Sheriff's Department. St. Charles had received calls from the medical examiner's office, the U.S. Post Office, whose vehicle was involved in the accident, and Sergeant Stroud from the Hillsborough County Sheriff's Department. At the hearing, St. Charles was uncertain which call had been Stroud's; however, St. Charles explained that he had tried to contact troopers at the scene to get additional information and that they were away from their vehicles. St. Charles did not have the information requested by Sergeant Stroud and therefore referred him to the hospital where they had taken the child. Sergeant Stroud identified Exhibit 2, a complaint letter he had written to Lieutenant Lowman of the Florida Highway Patrol. Stroud stated in the letter that an unknown male dispatcher, later determined to be St. Charles, had told Stroud that "He wasn't really concerned how old the child was and that if I (Stroud) wanted to know I could call the Brandon Hospital." At the hearing, Sergeant Stroud reconfirmed his recollection of St. Charles' comments to him. Without regard to the exact language used by St. Charles, it is clear that St. Charles did not provide Sergeant Stroud with the information which he sought and did not explain the existing situation which prevented him from giving Stroud the information. The position of radio teletype operator is an important one because the operator is responsible to transmit calls to and from the troopers by radio, perform certain law enforcement checks for the troopers by telephone or teletype, and respond to telephone calls from the public and other law enforcement agencies. The radio teletype operator's duties contribute to the overall enforcement effort of the Florida Highway Patrol and to the relationship of the Florida Highway Patrol with the public and other law enforcement agencies. This requires that the radio teletype operator perform his duty in a professional manner, using good personal judgment and diplomacy. St. Charles had been counseled previously about the manner in which he conducted his duties which at times bordered upon rudeness. St. Charles explained that he spoke loudly and in short sentences because his mother had been deaf and that in the pressure situations which sometimes developed, his manner of speech and abruptness might appear to be discourteous and rude to those with whom he was speaking.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency took the disciplinary action for good cause and therefore should be sustained. DONE and ORDERED this 13th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1978. COPIES FURNISHED: Vernon L. St. Charles 1401 North Forbes Road Plant City, Florida 33566 Mrs. Dorothy Roberts Appeals Coordinator, CSC 530 Carlton Building Tallahassee, Florida 32304 Edwin Strickland, Esquire John Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida Mr. Maurice Helms Personnel Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
Findings Of Fact As stipulated by the parties, the Findings of Fact are as follows: Petitioner was employed as a teacher by the following employers during the specified periods of time. Dixie County School System 1929-30 9 months 1930-31 9 months 1931-32 9 months Hardee County School System 1932-33 6 months 1933-34 8 months 1934-35 10 months 1936-37 9 months Petitioner was employed by the State Road Department from August 1, 1937, to October 31, 1939. Petitioner began serving as a Highway Patrolman on November 1, 1939, and continued until January 31, 1972. This service included a military leave of absence from March 1, 1943, through December, 1945. Petitioner retired from the Florida Highway Patrol on January 31, 1972. His service credit for retirement included the service with the State Road Department and the military service. On February 1, 1972, Petitioner began employment with the Department of Highway Safety and Motor Vehicles. He became a member of the Florida Retirement System on this date pursuant to the requirements of Chapter 121, Florida Statutes. Petitioner was a member of the Highway Patrol Pension System from November 1, 1939, through January 31, 1972. He has been a member of the Florida Retirement System from February 1, 1972, through the present. He has never been a member of the Teachers' Retirement System. The Teachers' Retirement System was created effective July 1, 1939. The terms of Chapter 321, Florida Statutes, governing the Highway Patrol Pension System, did not permit the Petitioner to receive service credit for his employement (sic) as a teacher from 1929 through 1937. If Petitioner is to receive service credit for his employment as a teacher, it can only happen pursuant to Section 121.021(19)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the decision of the Agency Head denying the Petitioner, J. Wallace Smith, the prior service credit requested be made final. DONE and ORDERED this 10th day of August, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Diane K. Kiesling, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303 Mr. J. Wallace Smith 1473 Marion Avenue Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner by terminating his employment in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Olaciregui was employed as a road patrol trooper with FHP. His work schedule typically consisted of a 40-hour shift. Petitioner worked an average of 16-to-24 additional hours per week because he needed the income to survive, which made him tired. Petitioner never told his employer he was tired. On or about January 26, 2004, Petitioner decided to seek medical attention for his fatigue and lack of sex drive. He went to PowerMedica, a clinic. At PowerMedica, Olaciregui filled out a Confidential Medical History Form regarding his medical history. Petitioner did not answer the questions on the form accurately. He did not disclose his medical problems, and he put on the form that he had no problems. On question number 32, he checked "no" for decreased sexual potency. After meeting with the doctor, Petitioner was provided a prescription to obtain a blood test. The prescription contained the address of a physician located in New York. Petitioner had his blood drawn at LabCorp of America, a separate and unaffiliated business from PowerMedica. Petitioner had his blood work done at LabCorp and returned to PowerMedica to get the results. Petitioner met with Dr. Almarashi and went over the blood-work results. He was informed that his testosterone levels were below average. Petitioner's results were 129 above the bottom end of the range at a level of 370. The top of the normal range is 827, and the low end of the normal range is 241. No additional evidence was provided to support Petitioner's allegation of low testosterone. Petitioner decided to follow the treatment plan the doctor provided him after he was told he had low testosterone and take prescription medication. The PowerMedica doctor gave Petitioner a prescription that he could not fill at Walgreens or CVS but that could only be filled in the PowerMedica pharmacy. Petitioner did not question the prescriptions or ask anything about them. PowerMedica visits and the prescription medications were not covered under Petitioner's health insurance. His initial bill totaled approximately $1,529.95, but he purchased and used all the medications, including three controlled substances that were anabolic steroids. Petitioner did not report his medical treatment to FHP. On or about June 8, 2004, Petitioner was hit by a car and FHP placed him on workers' compensation. Petitioner was under a doctor's care while receiving workers' compensation but never advised the doctor about the medications he was taking from PowerMedica. He also failed to disclose to the workers' compensation doctor that he was being treated for any other medical conditions. In June 2004, Petitioner went back to the clinic for a follow-up visit. He obtained additional medication, which he took. When Petitioner stopped his treatment at PowerMedica, it was because he could no longer afford it. During treatment and after leaving PowerMedica, Petitioner never voluntarily informed FHP that he lacked a sex drive, that he was tired, or what his testorene level was because he was embarrassed and felt the issue was private. Approximately four years after Petitioner stopped going to PowerMedica, a FHP lieutenant provided Petitioner a document explaining that he was under investigation. The investigation stemmed from the U.S. Food and Drug Administration's (USFDA) closing down PowerMedica for unlawfully selling steroids and Human Growth Hormones. USFDA provided Petitioner's medical records seized by search warrant from PowerMedica to Lieutenant Paul Sharp and Sergeant Mark Shoaff, the two internal affairs officers assigned to investigate the matter. On or about July 2, 2008, Petitioner provided statements to Lieutenant Sharp and Sergeant Shoaff regarding the investigation. During his interview, Petitioner was questioned about PowerMedica, Dr. Almarashi, and the treatment he received at the clinic. Petitioner admitted to the investigators filling his PowerMedica medical prescriptions for steroids and taking nandrolone decanoate, oxymetholone, and stanozole, which were controlled substances. Petitioner also finally disclosed his medical condition to FHP during the interview and told the investigators that he "had severe aches and pains, low testosterone and [he was] lacking a sex drive." After the investigation was complete, FHP by letter dated September 4, 2008, informed the Petitioner that the Department was proposing to dismiss him from his position as a Law Enforcement Officer with FHP. The FHP Investigation Report states: Trooper Michael Olaciregui admitted that he purchased and used controlled substances from PowerMedica in 2004. Olaciregui further admits and PowerMeidca's records confirm, that he made his first purchase of controlled substances, syringes and needles on January 26, 2004 for $1529.95 (Exhibit #3). The purchase is confirmed by a credit card receipt signed by Olaciregui on January 26, 2004 and the prescriptions were filled and dated on January 26, 2004. The records also indicated that this purchase and the receipt of these controlled substances by Olaciregui on January 26, 2004 was done four (4) days prior to him going to LabCorp (Exhibit #4) and submitting his blood for analysis on January 30, 2004. Records further indicate that he made other purchases from PowerMedica for controlled substances on April 16, 2004, June 14, 2004, June 28, 2004 and on July 6, 2004. Petitioner requested a predetermination conference that was held on October 27, 2008. FHP determined that no additional facts were presented to change the disciplinary action and that the termination as a disciplinary action was warranted. On January 14, 2009, FHP provided Olaciregui a termination letter that provided factual allegations of the investigation and the following violations as grounds for termination: * * * Section 893.13(6) (a) Florida Statutes, Possession of a controlled substance without a valid prescription, 3rd Degree Felony; Florida Highway Patrol Policy Manual, Chapter 3.03.06(A) 7. Code of Conduct states: "Members will maintain a level of moral conduct in their personal and business affairs which is in keeping with the highest standards of the law enforcement profession;" Florida Highway Patrol Policy Manual, Chapter 3.03.06(a) 51. Code of conduct states: "Members will not possess or use cannabis or any controlled substances except when prescribed by law and Division directives"; Florida Highway Patrol Policy chapter 5.11.05, Substance Abuse. These violations constitute the following disciplinary offenses: Possession, Sale, Transfer or Use of Drugs Off the Job, first offense; Violation of Statutory Authority, rules, Regulations or Policies, Fourth Offense; Conduct Unbecoming a Public Employee, first offense. After approximately 12 years of employment, FHP terminated Petitioner's employment on January 14, 2009, for using controlled substances that he received from PowerMedica in 2004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 day of November, 2009.
