The Issue Whether Respondent, a certified correctional officer, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent has been certified as a Correctional Officer in the State of Florida since March 9, 1994. There was no evidence that he had been the subject of any prior disciplinary action. At all times material to this proceeding, the Department employed Respondent as a Correctional Officer. 2/ On December 21, 1999, Respondent reported for his scheduled duty shift at the Turner Guilford Knight Correctional Center (the TGK Center). The TGK Center is a jail located in Miami-Dade County and operated by the Department. Respondent was scheduled to work the shift beginning at 6:30 a.m. and ending at 2:30 p.m. On December 21, 1999, Respondent was assigned as a unit manager at the TGK Center. His responsibilities included the care, custody, and control of all inmates in his assigned unit of the facility. Respondent was responsible for conducting visual inspections of the unit and inmate headcounts. Visual inspections and inmate headcounts are separate procedures. In a visual inspection, the officer looks for anything out of the ordinary by walking around the entire unit, looking into each cell, and checking on all inmates. In a headcount, the officer accounts for the presence of each inmate by counting the inmates in the unit. At the times pertinent to this proceeding, Respondent was required to document his activities at the TGK Center by making written entries in a Unit Logbook. Upon reporting for duty at 6:30 a.m., Respondent made an entry in the Unit Logbook recording the time, his presence on duty at "0630," and his receipt of certain equipment from the previous shift. Respondent made a second entry in the Unit Logbook at 6:43 a.m. As the first line of the second entry, Respondent inserted in the Unit Logbook the following: "0643-Visual check of unit/inmates all app QRU." The first line of the second entry would convey to other officers reviewing the Unit Logbook that Respondent had determined through a visual inspection that all was well throughout the unit at approximately 6:43 a.m. 3/ As the second line of the second entry, Respondent inserted in the Unit Logbook the following: "H/C B W H." That entry would convey to other officers reviewing the Unit Logbook that Respondent had intended to conduct an inmate headcount and list each inmate in one of the following categories: Black, White, or Hispanic. Because no numbers were inserted next to each designated category, it would have been clear to other officers reviewing the Unit Logbook that Respondent had not completed the inmate headcount. Respondent became preoccupied with preparations for serving the inmates their morning meal, which he intended to serve early because he was expecting supplies to be delivered that morning. Respondent did not complete the headcount he had intended to take. Shortly before 9:30 a.m., Respondent assigned an inmate trustee to assist him with the meal preparations and told the trustee to find another inmate to help. The trustee then went to another part of the unit to look for another inmate to help with preparations for the meal. Shortly thereafter, Respondent heard the inmate trustee screaming, and Respondent immediately went to investigate. At 9:30 a.m., Respondent arrived at cell 5520 and observed inmate Carlos Nevis hanging in front of the window of the door. Mr. Nevis' body was readily observable from outside the room through the window of the door. Rigor mortis had set in, which indicated that Mr. Nevis had hanged himself prior to the time Respondent reported to work. Respondent did not perform a visual check of the inmates in the unit at 6:43 a.m. as he recorded in the Unit Logbook. Had Respondent actually performed the visual checks at that time, he would have discovered Mr. Nevis' body. The first line of the second entry made by Respondent in the Unit Logbook entry at 6:43 a.m. indicating that he had made a visual check of the "unit/inmates" and that all appeared "QRU" was false. Respondent had not performed a visual inspection to determine the status of the unit.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent failed to maintain good moral character, as required by Section 943.1395(7), Florida Statutes. It is further recommended that Respondent's certification be suspended for a period of six months and that he thereafter be placed on probation for a period of two years. As a special condition of probation, Respondent should be required to complete an ethics course approved by Petitioner. DONE AND ENTERED this 21st day of August, 2002, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2002.
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
The Issue Is Petitioner entitled to exemption from disqualification by law with regard to working in a position of special trust and responsibility related to children, disabled adults, and elderly persons?
Findings Of Fact Petitioner is disqualified from working in a position of special trust because of: a 1990 conviction of cocaine possession, a 1990 conviction of sale of a counterfeit substance, two 1992 convictions for possession of cocaine, and conviction of a 1992 charge of failure to appear. Prior to these criminal convictions, Petitioner had worked as a mail carrier. Petitioner explained that the drug convictions really revolved around residue found on paraphernalia in his possession. He offered no explanation as to how this detail diminished the gravity of his conduct. After Petitioner's conflict with law enforcement and his release from subsequent incarceration in the state prison system, he has earned a bachelor's degree in social work. He is presently applying for admission to graduate school at Florida State University to work toward a master's degree in his chosen field of social work. Petitioner presently works with his church and with inmates at the correctional facility in Wakulla, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 9th day of June, 1999, in Tallahassee, Florida. DON W. DAVIS 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 9th day of June, 1999. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Andrew C. Greene Apartment K-103 2125 Jackson Bluff Road Tallahassee, Florida 32304 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the application of Petitioner for a license as an employee guard should be granted or denied, based upon the grounds for tentative denial stated in the Department's letter dated August 23, 1978. At the hearing, the Department of State introduced the application of Willie F. Scott which stated that Scott had been arrested for driving without a license in 1969. The applicant testified that he had been arrested in 1967 in Miami, Florida for suspicion of armed robbery, that he had been arrested in 1969 in Long Beach, California for driving while intoxicated, had been arrested in 1970 in Atlanta, Georgia for disturbing the peace, had been arrested in Miami, Florida in 1971 for possession of marijuana, and had been arrested in Miami, Florida in 1972 for driving without a license. The Applicant further testified that he had revealed all of the foregoing arrests to his employer or a representative thereof, and that said representative had filled out his application and had advised him not to state these additional arrests. The grounds stated for denial by the Department was falsification of the application for licensure. The issue presented at final hearing was whether the Applicant had falsified his application when he advised his employer of the arrest and the employer, who filled out the application, failed to report the arrests?
Findings Of Fact Willie F. Scott is an Applicant for a license as an employee guard. This includes licensure both as an armed and unarmed guard. Scott signed an application which was presented to the Department of State. The application was filled out by Scott's supervisor, an agent of Scott's employer. Scott revealed his arrest record to the employer's agent who did not include these matters on Scott's application. Although Scott had been arrested several times prior to 1972, his only conviction was for driving while intoxicated while in Long Beach, California while he was in the Marine Corps. Scott served in the United States Marine Corps for two years and was honorably discharged with the rank of lance corporal. During the period of his employment, Scott has been promoted by his employer from patrolman to patrol sergeant. Scott was arrested in 1967 in Miami, in 1969 in Long Beach California, in 1970 in Atlanta, Georgia, and in 1971 in Miami, Florida. His only conviction was for driving while intoxicated in Long Beach, California.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Department of State issue Willie F. Scott Class F and G licenses as an employee guard. DONE and ORDERED this 17th day of October, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1978. COPIES FURNISHED: Willie F. Scott 5300 Northwest 33rd Northwest Miami, Florida 33142 Gerald Curington, Esquire Department of State The Capitol Tallahassee, Florida 32304 Marvin Sirotowitz Department of State The Capitol Tallahassee, Florida 32304
The Issue This is a rule challenge proceeding in which the Petitioner originally sought a determination pursuant to Section 120.56, Florida Statutes, that Rule 33-6.006, Florida Administrative Code, was an invalid exercise of delegated legislative authority. This case began with the filing of a Petition For Administrative Determination on December 23, 1986. On March 26, 1987, this Hearing Officer issued a Final Order of Dismissal which granted the Department's motion to dismiss. The Final Order Of Dismissal concluded that the Petitioner had failed to allege standing to challenge Subsections (2) through (9) of Rule 33-6.006, because his allegations were insufficient to show that his substantial interests were affected by those subsections of the rule. The Final Order Of Dismissal went on to conclude that the Petitioner had sufficiently alleged standing to challenge Subsection (1) of the challenged rule, but also concluded that the Petitioner had failed to sufficiently allege facts sufficient to show the invalidity of the rule. In this regard the Final Order Of Dismissal specifically stated at paragraph 12: In order to sufficiently allege the invalidity of an existing rule, a rule challenge petition must assert, at a minimum, that the challenged rule is in some specified way a departure from statutory authority granted to the rule enacting agency by the Legislature. Where, as here, the rule is nothing more than a repetition of the statutory provision, the rule may be unnecessary, but it is not an invalid exercise of delegated legislative authority because it does not in any way depart from the statutory mandate. Because of the identical provisions of the subject rule language and the applicable statute, the Petitioner has not, and cannot, allege any facts sufficient to show that the rule is an invalid exercise of delegated legislative authority because he has not, and cannot, allege any differences between the statutory mandate and the rule mandate. The Petitioner sought appellate review of the Final Order Of Dismissal. In Diaz v. Florida Department of Corrections, 519 So.2d 41 (Fla. 1st DCA 1988), appeal dismissed, 525 So.2d 877 (Fla. 1988), the First District Court of Appeal issued an opinion which primarily addressed the constitutionality of the statutory authority for the challenged rule. In that opinion the court concluded as follows: Accordingly, we declare section 945.10(2) Florida Statutes (1985), to be unconstitutional. The case is remanded to the DOAH hearing officer for further proceedings to determine the validity of Rule 33-6.006(1) in light of this opinion. On March 21, 1988, the appellate court issued its mandate and the case was once again before the Hearing Officer for further proceedings consistent with the court's opinion. The appellate court decision left undisturbed the conclusion that the Petitioner lacks standing to challenge Subsections (2) through (9) of Rule 33-6.006. Accordingly, the issue on remand is limited to a determination of the validity of Subsection (1) of Rule 33-6.006, Florida Administrative Code. As discussed in the conclusions of law, that determination involves a consideration of statutory amendments which took effect after the appellate court decision and were, therefore, not considered by the appellate court. At the final hearing, both parties presented the testimony of witnesses and the Petitioner also offered several exhibits. During the course of the hearing the Petitioner was granted leave to file two late exhibits consisting of selected portions of the Department's Policy and Procedure Directives and selected portions of the Florida State Prison Institutional Operating Procedures. The Respondent was granted leave to file post-hearing objections to any late-filed exhibits. The late-filed exhibits were submitted by the Petitioner and the Respondent promptly filed objections to same. Upon consideration, the objections to the exhibits are overruled and the late-filed exhibits are received as part of the record in this case. Following the hearing, a transcript of tide proceedings at hearing was also filed. Thereafter, both parties filed timely proposed final orders containing proposed findings of fact and conclusions of law. The parties' proposed final orders have been carefully considered during the preparation of this final order. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated herein.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings stipulated by the parties Florida Administrative Code Chapters 1S, 22I, 28, and 33, as found in the Florida Administrative Code Annotated, through the April 1988 supplement, are true and correct copies of those rule chapters. The Petitioner's current address is: Enrique J. Diaz Inmate Number 065599 Florida State Prison Post Office Box 747 Starke, Florida 32091 The Respondent's name and address is: Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 The Department rule on which an administrative determination is sought is Rule 33-6.006(1), Florida Administrative Code, which states: No inmate of any institution, facility, or program shall have access to any information contained in the files of the Department. The statutory provisions on which the subject Department rule is based are Sections 944.09 and 945.10, Florida Statutes. The Petitioner's interests are substantially affected by Rule 33- 6.006(1), Florida Administrative Code, in that: He is a convicted felon, lawfully confined in the custody of the Department. He wishes to obtain from the Department, for the lawful cost of copying, documents he was once given by the Department, but which he no longer has in his possession, including, but not limited to: Institutional grievances filed by him. Grievance appeals filed by him. Disciplinary Reports issued against him. Disciplinary Report Worksheets issued against him. He wishes to obtain from the Department, for the lawful cost of copying, documents which are public records and which can be obtained by anyone from sources outside the Department, including, but not limited to: His Judgment and Sentence forms. His Uniform Commitment to Custody form. He wishes to obtain from the Department documents which are public records and which are normally provided to any member of the public requesting same, including, but not limited to: The Department's annual report. Ordinary records kept in the normal course of business, such as might be kept by any state agency. He had been refused any and all documents from the Department because of Rule 33-6.006(1), Florida Administrative Code. FINDINGS BASED ON EVIDENCE AT HEARING Inmates are given copies of any disciplinary reports they receive at the time they receive the disciplinary report, plus the results of any subsequent disciplinary hearing. These copies are carbon copies rather than photocopies. Inmates are given answers to inmate requests, institutional grievances, and grievance appeals they file. These answers are given to the inmate with a copy of his original filing. The act of giving an inmate another, identical, copy of any disciplinary report, disciplinary worksheet, inmate request, institutional grievance, or grievance appeal he had previously been given does not create a security problem. The act of giving an inmate another, identical, copy of his Judgment and Sentence forms, which are public documents contained in the files and records of the appropriate Clerks of Court, does not create a security problcm. Copies of the above documents are routinely made for attorneys and the news media. The actual cost of providing these copies is charged. The Department would not provide copies of the above documents if it were known the copies would be given to an inmate. The Department's Administrative Gain Time Manual is made available to the news media, the public, and attorneys. The Department refuses to make this manual available to inmates. The Florida State Prison Institutional Operating Procedures (IOPs) are public records, but the Department refuses to make copies of them for individual inmates because of Rule 33- 6.006(1), even though some of the IOPs are in the prison law library. The Department's Policy and Procedure Directives are freely available to the public, but the Department refuse to make them available to inmates. Florida State Prison, where the Petitioner is incarcerated, has approximately 1164 inmates. In accordance with state statute, the institution keeps a file on each inmate. Each file consists of from two to eighteen legal size folders of documents. The files include such material as investigation reports, disciplinary reports, special review information, presentence reports, psychological and medical reports, detainers, gain time, and other information. There are three people in the Florida State Prison records department responsible for inmate files. It takes the FSP record department three or four hours daily to file newly received documents. The FSP records department also has other duties, such as posting gain time, cell changes, and disciplinary reports. The FSP records department has received few, if any, requests for information from the public or the news media. Most of their requests come from attorneys. The attorneys' requests for information place additional burdens on the small FSP records department staff. By way of example, it took approximately two hours to "screen" the Petitioner's file at FSP and his file is smaller than that of 75 or 80 per cent of the inmates. Florida State Prison has only three photocopy machines for the entire institution. The machines are used extensively and are subject to frequent malfunctions. The Admissions and Release office maintains the official file on each inmate at the central office. Currently, there are 33,000 inmates in custody. The primary reason that the Admissions and Release office does not want inmates to have hands-on access to their central office files is to maintain the integrity of the record. The Department has had to use the files in court to defend and substantiate the calculations for release dates. The Admissions and Release office has denied all inmate requests for copies of information from its files. The Admissions and Release office is currently shorthanded. Whenever there is a new court decision affecting inmate rights or sentences, the office is flooded with correspondence and requests from inmates. The office has already received some grievances and requests from inmates concerning the appellate court decision in this case. The office expects a flood of requests if inmates are given access to Department records. During the past four years the Admissions and Release office has had very few requests for access to its files from the news media or the general public. The Department's central files contain access codes for the Department's computers. If inmates could obtain the access codes, it would compromise the integrity of the Department's computer records. Before release of any information from the Department's central office files, the information is screened for confidential information. Even documents which appear to be facially innocent have to be read to determine whether they contain information about informants or victims. The Department is concerned that if inmates are allowed broad access to Department files, such access will create security problems. But the Department is even more concerned about the sheer volume of requests that would result from allowing broad access and the impact the expected volume of requests would have on Department staff and copying equipment. The Department is also generally of the view that it is virtually impossible to write a rule which would describe which documents should be available for inmate access and which should not. Rather, the Department is of the view that decisions regarding release of documents to inmates must be made on a case by case basis after review of each document in each file.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. Respondent has stipulated that Petitioners have "standing" to challenge the rules and the policy and procedure directives which are the subject of this proceeding. At the time the petition in this cause was filed, Petitioners challenged the validity of Rule 33-3.081, Florida Administrative Code, as it existed as of its latest revision on May 22, 1981. However, subsequent to the filing of the petition in this cause, and prior to the date of final hearing, Respondent amended Rule 33-3.081, and filed these amendments with the office of the Secretary of State on June 23, 1983. At final hearing in this cause, the parties stipulated to the Petitioners maintaining a challenge to newly amended Rule 33-3.081(4), (5), and (9)(a) and (d), Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.11, which was subsequently revised on June 14, 1981. This directive contains 13 separately titled sections. The first section, entitled Authority, simply lists the authority, both statutory and rule-based, for issuance of the directive. Section three contains definitions which, with a single exception not relevant here, are identical to those contained in Rule 33-3.081(2). Sections four through thirteen likewise recapitulate provisions contained in Respondent's rules or in relevant statutes. The following is a list of titles of sections four through thirteen, each of which is followed with a parenthetical reference of the rule provision substantially incorporated therein: Staff Selection (33- 3.081(10)); Basis for Placement (33-3.081(1)); Placement (33-3.081(4)); Protection Cases (33-3.082); Visiting (33-3.081 (5)); Gain Time (33-11.11 and Section 944.28, Florida Statutes); Review of Administrative Confinement (33- 3.081(6)); Self-Improvement Programs (33-081(7)); Facilities (33-3.081(8)); General Provisions (33-3.081(9)(a)-(k)). Sections 13(l) and (m) of the policy and procedure directive essentially reiterate the provisions of Rule 33-3.081(6) and 33-3.081 (11) , respectively. On or about June 14, 1981, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.20, entitled "Discipline." This directive which purportedly issued pursuant to the authority contained in Sections 944.09, 944.14, 944.15, 944.28 and 945.21, Florida Statutes, and Chapter 33-3.08, Florida Administrative Code. In fact, each of the 20 separately numbered portions of this directive substantially recapitulate requirements already contained in Rule 33-3.08, Florida Administrative Code. The single exception is Section 7 of the directive, entitled Administrative Confinement, which finds its support in Rule 33-3.081. Neither Policy and Procedure Directive 4.07.11 nor Policy and Procedure Directive 4.07.20 purport to create or otherwise adversely affect rights of inmates in any manner which differs from corresponding provisions of Rules 33- 3.081, 33-3.08 or the provisions of the Florida Statutes cited as authority for issuance of the policy and procedure directive. Rather, the rights of inmates are specifically determinable pursuant to those cited statutory provisions and the requirements of Rules 33-3.081 and 33-3.08, and the challenged policy and procedure directives simply recapitulate the requirements contained therein.
Findings Of Fact On his application form Petitioner was asked if he had ever been arrested. He checked the box indicating "yes." The form further inquired "If yes, list any and all arrests and dispositions. This may or may not be grounds for denial. If additional space is required, use back of application." To that inquiry, Petitioner indicated a charge for grand theft. He did not indicate the disposition of the charge but did indicate a date of 1958. At the conclusion of the application form Petitioner swore that the information contained therein was true and correct. Petitioner's history of arrests indicates, among others, the following: July 24, 1945 larceny of an automobile; August 31, 1945 unauthorized use of an automobile without owners consent; in addition Petitioner was convicted on July 3, 1947 for grand larceny and sentenced to the Florida State Prison for a period of two (2) years; on August 17, 1949, Petitioner was convicted of auto larceny and sentenced to the Florida State Prison for a period of three (3) years; and on March 11, 1959, Mr. Davis was convicted of robbery and sentenced to the Florida State Prison for the full term of fifteen (15) years. Mr. Davis was released from State custody in 1970. Since that time the available evidence does not indicate any further arrests or convictions of Mr. Davis. At the final hearing in this case Mr. Davis testified that the reason he did not fully disclose his prior arrest record was because he thought that the disclosure of one arrest would lead the Department of State's office to his complete record. This testimony is not accepted as credible. Mr. Davis is now able to vote in Florida elections.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for a Class "F" Unarmed Security Guard License be denied. DONE and RECOMMENDED this 3rd day of October, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether Mr. Mirvis is eligible to receive a Florida teacher's certificate.
Findings Of Fact Laurence Mirvis completed an application for a Florida teacher's certificate on January 23, 1989, which the Department received on January 27, 1989. In 1981, Mr. Mirvis was charged in the circuit court with carrying a concealed weapon by the state attorney in Martin County, Florida, in the case styled State of Florida v. Larry Mirvis, Case No. 80-751CF. The matter was refiled as a misdemeanor prosecution in the county court, as State of Florida v. Mirvis, Case No. 80-19232MM. Mr. Mirvis was found guilty by the county judge based upon plea of guilty he entered after discussing the matter with his attorney, was sentenced to 60 days in the county jail, one year of nonreporting probation conditioned upon leaving Martin County. A little over three years later, on January 22, 1984, Mr. Mirvis was arrested in Delray Beach, Florida for threatening an employee at a convenience store who had followed Mr. Mirvis into the parking lot because he believed Mr. Mirvis had taken items from the store without paying for them. In the parking lot Mr. Mirvis had pointed a handgun at the employee and then fled. On August 7, 1985, Mr. Mirvis was adjudged guilty of carrying a concealed firearm, a third degree felony, in violation of Section 790.01(2), Florida Statutes, upon entering a plea of guilty. He was sentenced to time served.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Commissioner of Education denying the application of Laurence Mirvis for a Florida teacher's certificate. DONE and ENTERED this 12th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 12th day of February, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurence Mirvis Post Office Box 6821 Delray Beach, Florida 33484 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, #301 Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 325 West Gaines Street, Room 352 Tallahassee, Florida 32399 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner should be granted an exemption from disqualification for working in a position of trust with disabled adults and children pursuant to the provisions of Chapter 435, Florida Statutes.
Findings Of Fact Since 1979, Petitioner, Vernon Jackson (Petitioner), has been employed by the Department of Children and Family Services (Respondent) or its predecessor government agency, with the exception of a period in 1996-97. He is presently classified as a psychiatric aide. Petitioner worked in a unit of the Florida State Hospital in Chattahoochee, Florida, which provides care to the patients of the facility, and he is a caregiver. It is in that capacity that he is subject to the employment screening requirements of Chapter 435 of the Florida Statutes. On August 23, 1980, Petitioner's girlfriend, Willie Thomas, got into an argument with a 17-year-old girl named Gwendolyn Arnold. When the argument between Thomas and Arnold escalated into a physical fight, Petitioner became involved in the fray. Arnold's 15-year-old brother also joined in the activity. As a result of the incident, Petitioner was charged with the misdemeanor offenses of disorderly conduct, resisting arrest without violence, and battery. Petitioner pled guilty to all three of the charged offenses. Adjudication of guilt was withheld by the court. Petitioner paid a fine of $50, plus costs, for the first two counts, disorderly conduct and resisting arrest without violence, and a fine of $100, plus costs, for the battery charge. In conjunction with the battery charge he was placed on probation for a period of one year. Petitioner's next criminal episode also involved Willie Thomas, his earlier girlfriend. On April 16, 1981, Petitioner was arrested and pled guilty to trespassing at Thomas’ home. He was required to pay a fine of $50. Although, adjudication was again withheld, he was placed on probation to run concurrently with his earlier probation sentence. Some months later, on November 19, 1981, Petitioner pled guilty to disorderly conduct involving a public brawl with two men. He paid a fine of $75 and adjudication of guilt was withheld. Employment screening at the Florida State Hospital was commenced in 1997 for positions of employment similar to that held by Petitioner. Petitioner's 1980 offense and 1981 plea was overlooked until this year. On or about April 20, 2002, after discovery of the battery offense, a decision was made to remove him from a caregiver position pending resolution of his request for an exemption. With a birth date of January 21, 1960, Petitioner was 20 years of age at the time of his first offense and 21 years of age when he last committed a criminal offense. Several supervisors of Petitioner testified that he was at all times a caring and diligent worker. Those supervisors included Karen Alford (“He was good.”); Freddie Culver (described Mr. Jackson as showing a lot of care and kindness); and Helen Conrad (“Excellent”). The parties stipulated that Julia Thomas and Barry Moore would testify to similar conclusion and opinions as to the quality of Petitioner's employment. Petitioner’s performance appraisals were at least satisfactory.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner an exemption from disqualification. DONE AND ENTERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 17th day of October, 2002.
Findings Of Fact The initial Petition for Administrative Hearing was filed on September 12, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 33-3.00125, Florida Administrative Code, and I.O.P. #P2-89.10 were challenged. The Challenged Rule is titled "Inmate Telephone Use." The Challenged Rule sets forth the "minimum telephone privileges that shall be granted inmates. . . ." The I.O.P. apparently deals with the same general subject as the Challenged Rule. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 4, Affected Interest of the Petitioner, Second Amended Petition, provides the following: 4. That the (Petitioner) is affected by the Agancy [sic] promulgation of 33-3.00125 et. seq. that materially fail to follow the applicable rulemaking procedure setforth [sic] in 120.54. And, establish adequate standards for the Agency decision making as needed June 6th, 1990, August 13th, 1990 that exceed it [sic] grant of authority and fail [sic] to include the requirements of (consistancy) [sic] in delegating to I.O.P. P2-89.10 as 33-1.007(1), (3), (4) mandate and the unbridle [sic] discretion exercised by the Agency to deny (telephonic communication) needed for judicial reason [sic] as requirements of the court in Case # 90- 2968-23 Horton v. Florida Federal S.B. as not being available for judicial needs. [Emphasis in original]. This paragraph is fairly typical of most of the Petition, the First Amended Petition and the Second Amended Petition. Although it contains some "legalize", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to several alleged incidents involving attempts by the Petitioner to use a telephone. In the Statement of the Case and Facts of the Petition, paragraphs 13-20 pertain to an incident which allegedly occurred in December, 1989, paragraphs 21-42 pertain to an incident which allegedly occurred in May and/or August, 1990, paragraphs 43A-48A pertain to an incident which allegedly occurred in August, 1989, and paragraphs 52A-59A pertain to an incident which allegedly occurred in January, 1991. These events are further referred to in other portions of the Petition and throughout the First and Second Amended Petitions. Paragraph 24, Statement of the Facts, of the First Amended Petition is fairly typical of the allegations concerning specific actions complained of by the Petitioner: 24 That the (Petitioner) has repeatively [sic] been subjected to the (practices) arbitrary, capriociously [sic], exercise pursuant to 33-3.00125 et. seq. F.A.C. as by Florida State prison administrators as T.L. Barton, L.E. Turner, P.C. Decker, and dates of July 23rd, 1988; June 5th, 1990, August 13th, 1989 and as setforth [sic] herein; [Emphasis in original]. The alleged incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the particular incidents reviewed. The Petitioner's allegations concerning the alleged incidents involving his attempts to obtain use of the telephone are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, actions of the Respondent in denying him the use of a telephone on the dates raised by the Petitioner in his Petition and his First and Second Amended Petitions. 9 The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule and the I.O.P. See paragraphs 6, 11-12, 17, 20, 44A, 50A and 60A of the Statement of the Case and Facts of the Petition. The Petitioner also mentions constitutional provisions in numerous other parts of the Petition, the First Amended Petition and the Second Amended Petition. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule or the I.O.P. is unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rule and the I.O.P. are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition, the First Amended Petition and the Second Amended Petition. On November 18, 1991, an Order Granting Motion to Dismiss and Cancelling Formal Hearing was entered. On December 6, 1991, a pleading titled "Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th 1991 According [sic] Opportunity to Amend" was filed by the Petitioner. The First Amended Petition is very similar to the Petition and suffers from the same deficiencies. The First Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the First Amended Petition which, if proven, would support a determination that the Challenged Rule and the I.O.P. are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Amended Petition was entered dismissing the First Amended Petition and giving the parties an opportunity to file proposed final orders. On December 12, 1991, the Petitioner filed a document titled Petitioner's Motion to File a Second and Final Amendment" and a Second Amended Petition. The Second Amended Petition does nothing to correct the deficiencies of the Petition or the First Amended Petition. The motion to file the Second Amended Petition was denied by Order entered December 18, 1991.
