Findings Of Fact On or about January 31, 1990, the Petitioner, John P. Fletcher, applied for a Class "D" Unarmed Security Officer license. In Section 13 of the application, the Petitioner represented that he never had been arrested. In 1957, when the Petitioner was about 21 years old, he was arrested in West Union, West Virginia, with a brother and another man, and the three were charged with stealing gasoline from a filling station. The Petitioner denies that he stole the gasoline, saying that he and his brother did not know that the third man had not paid for the gasoline for the car they were riding in. The Petitioner's mother paid restitution, and the charges were dropped. In November, 1963, when the Petitioner was about 27 years old, he was arrested for, and adjudicated guilty of, contributing to the delinquency of a minor. In fact, he was teaching a minor to drive a car against the wishes of the minor's parents. He served 60 or 90 days in jail in Lakeland on the charges. Two years later, in August, 1965, while he was working for the Peninsula Lumber Company, the Petitioner was arrested for alleged aggravated assault with a deadly weapon and was put in jail for seven to 14 days while awaiting trial. The charges arose out of an altercation with a fellow employee. The Petitioner was upset about his pending divorce, and the other man kept picking at him about it. Three times, the Petitioner asked the man to stop, but he persisted. At one point, the man came at him in a threatening manner with a hammer in his hand, and the Petitioner cut him with a knife. In court proceedings, the other man admitted the truth of the Petitioner's version of the altercation, and the judge dismissed the charges. In January, 1983, the Petitioner was visiting at the home of his elderly mother, who was living alone in East Hillsborough County. The Petitioner was told that a bad-mannered neighborhood youth was vandalizing his mother's property and generally terrorizing her. The Petitioner was very angry about this. During the visit, he went out to his truck and found a firecracker, with fuse burned but not ignited, that he believed had been placed there by the youth of whom his mother had spoken. He sought out the youth, about twenty-one years old, grabbed him, and was going to "put a whipping on him" but did not. Instead, he threatened to do so if the youth did not stop his bad behavior, particularly towards the Petitioner's mother. As a result, the Petitioner was arrested and charged with aggravated assault. The Petitioner was placed on a pretrial intervention program on March 11, 1983, and he successfully completed the program on September 11, 1983. The charges were dismissed. The evidence did not explain why the Petitioner represented in Section 13 of his application that he never had been arrested. Although he conceivably could have forgotten about the 1957 arrest, it is not likely that he forgot about the others, and it is found that the misrepresentation was intentional. In the late 1960s and early 1970s, the Petitioner had occasion to work as a licensed armed security guard for Foley Security and Detective Agency and for United Security Agency in Tampa. The Petitioner worked for each of them for about a year, until each went out of business. He also worked for Securex and later Bedway as an unarmed security officer from January 29, 1990, until he voluntarily quit pending the resolution of his license application. The Petitioner also has worked as a truck driver and has operated heavy equipment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order denying the application of the Petitioner, John P. Fletcher, for licensure as a Class "D" Unarmed Security Officer. RECOMMENDED this 11th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 11th day of February, 1991.
The Issue The issue presented is whether Petitioner Amber Renae Baker has met her burden of proving actual innocence, thereby entitling her to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact Petitioner Amber Renae Baker was born on November 25, 1963. At the time of her conviction, she was 43 years of age. On March 28, 2006, Petitioner was charged with racketeering, in violation of Section 895.03(3), Florida Statutes, relating to her participation in her brother's escort service, which was in fact an organized prostitution ring. On April 16-20, 2007, Petitioner was tried before a jury in Escambia County, Florida, on one count of racketeering. She stood trial along with her brother, Dallas Baker, who was tried on a count of racketeering and for procuring a person under the age of eighteen for prostitution, and her mother, Mary Helen Baker, who was tried for racketeering as well. During the trial, Petitioner made a motion for judgment of acquittal, arguing that the State did not produce evidence that Petitioner knowingly participated in a pattern of racketeering activity, to wit: that the State of Florida did not produce any evidence that Petitioner knew that any of the women hired by her brother to provide escort services (a legal activity) was also providing prostitution services. Petitioner further argued that the State did not produce sufficient evidence that Petitioner intended to assist in perpetuating anything more than an escort service. The trial court denied Petitioner's motion for judgment of acquittal. The jury convicted all three defendants on all charges. Petitioner was sentenced to thirty-four and one-half months of imprisonment. On September 22, 2008, the First District Court of Appeal issued an Opinion reversing the trial court's denial of Petitioner's motion for judgment of acquittal. Baker v. State of Florida, 990 So. 2d 1221 (Fla. 1st DCA 2008). The District Court found, as a matter of law, that the State failed to present sufficient evidence to prove that she agreed to secure another person for prostitution or otherwise violated Section 769.07, Florida Statutes. Petitioner was released from incarceration on October 9, 2008. By the time she was released, Petitioner had been incarcerated for 540 days. Petitioner has never been convicted of any other felony in any jurisdiction. From 1995 through at least 2005, Petitioner answered the telephone for her brother's escort service from 1:00 p.m. until 3:00 a.m. seven days a week, arranging dates for the callers with the women who worked for her brother. When a call came in, she would describe the different girls that were available by height, weight, hair color, and bra cup size. Then Petitioner would call the woman in whom the caller expressed interest and give her the customer's phone number. The woman would decide if she wanted to go. Petitioner quoted to the customer, as she describes the men who called to hire a woman, the price of $150 to $200 per hour. During the "date," Petitioner would call the woman every hour to ask her if she was alright. After the "date," the woman would bring the money to Petitioner at her brother's trailer where she lived and answered the telephone. She knew that each of the women who worked for her brother had and was required to have a "dance card," which is the slang term for an occupational license for an exotic dancer. Petitioner contends that she did not know that her brother, with her help and her mother's help, was operating a prostitution ring. She contends that she believed that the women were simply going on dinner dates and were being paid by the customer $150 to $200 per hour to accompany a man who was also paying for dinner. She contends that she also thought that sometimes the women were hired for topless dancing or to attend a bachelor party, which meant charging the customer for four hours. Petitioner did not testify at her criminal trial on the advice of her lawyer and of her co-defendant brother. Because she did not testify, the State was not able to offer two documents into evidence. Those documents are a letter she wrote to her mother before her arrest and the transcript of an interview of her after she was arrested. The typewritten letter is undated and was confiscated from her home by the police when they executed a search warrant upon arresting her. In the letter she complains bitterly about her mother not loving her as much as she loved Petitioner's brother. Primarily, though, she complains bitterly that she has worked in the business for years without being paid even minimum wage. The letter also contains the following statements: (1) "And you have never cared that I could lose my kids because of this business. . . ." and (2) ". . . but I am gonna [sic] be left in the dirt as usual answering phones that could cause me to lose my kids. " Those statements are contrary to Petitioner's position in this proceeding that she did not know she was answering the phones and scheduling appointments for prostitution. There would be no danger of having her children removed from her custody for working in a legitimate business answering telephones and scheduling appointments. Further, photographs admitted in evidence show the condition of the trailer where Petitioner lived with her children. The conditions are deplorable and clearly unsafe. Although not obvious in the photographs, Petitioner admitted during the hearing that she allowed dog feces to remain in the trailer without removing them. Yet, she does not appear to have been worried that her children would be removed from her custody for unsafe living conditions, only for her answering the telephone for the business. The recorded and transcribed interview of Petitioner was conducted on March 27, 2006, after her arrest. The following questions and answers are relevant to this inquiry: Q. Did girls ever try to talk about sex with you? People having sex or people wanting some weird things? A. They, a couple of them would try to start talking about some weird things and I would say, I don't want to hear it. Q. What kind of weird things? A. I don't know, like walking on hot dogs. (Laughing) Q. Walking on hot dogs? Were girls allowed to talk to you about, I mean, if a girl tried to talk to you about sex what would you do? A. I would just tell them I don't want to hear about it. * * * Q. Okay. Do you believe the girls were having sex for money? Did you have a pretty good idea they were having sex for money? A. Well, I guess that's what everybody assumes. Q. Did you assume it? A. No Audible Answer. Q. Is that a 'yes' A. Um, what else can you assume? * * * Q. Really? Okay. Is there anything that you can think about that you can tell me why you would believe or what would make you think that Dallas knew the girls were having sex for money? A. I don't know. I, that's the way it's done on t.v. Q. What's, what's how it's done on t.v.? A. Services. Q. That are involved in prostitution? A. I was hoping he wasn't doing it. Q. Really? Did you feel he was? A. I guess. Q. Yes? A. I said I guess. * * * Q. . . . can you think of any conversations you and your mother had about customers or the things they liked or anything like that? A. No, just made jokes about the hot dog thing. We thought that was funny. Q. Really? What did, what did, what did he want her to do after she walked on the hot dogs? A. Let him eat them from between her toes. * * * Q. Men with feet fetishes? Never heard nothing like that? A. I don't know, they would call and ask for somebody with pretty feet sometimes. Petitioner, who professes to have had "a little bit of college," may well have avoided direct conversation regarding the real services offered by her brother's "escort service," but it is evident by her statements both in the letter she wrote to her mother and in her transcribed interview that she in fact knew that sex was involved in the "dates" she arranged and that she was at risk answering the telephones because she was participating in an illegal activity. Petitioner contends that she was an unwilling participant in her brother's business and that she was coerced into answering the telephone for the business because her brother emotionally and physically abused her and threatened her with harm. Petitioner takes two approaches in supporting her position that she was coerced by her brother into answering the telephone. First, Petitioner testified in this proceeding that her brother abused her when she was a child by calling her names and years later by beating her. Interestingly, her letter to her mother describes her brother as a "lying, back stabbing, whore hopping, white trash dog. . . ." It appears that name- calling was not a one-way street in Petitioner's family. Similarly, in her recorded interview she explained that her brother "always beat her up," but then admitted the last time was 16 years earlier. She also explained that when he had recently started cussing at her, she "told him to go to hell." The dynamic between Petitioner and her brother does not suggest duress or coercion, as Petitioner alleges. Petitioner's other approach to proving duress in this proceeding (rather than in the criminal proceeding where it can constitute an affirmative defense) is by the affidavits admitted in evidence by stipulation of the parties. One affidavit is that of Petitioner, which alleges her brother continuously beat and threatened her, a version not consistent with her testimony at the evidentiary hearing in this cause. The other affidavit is from a psychologist with solid credentials who saw Petitioner twice after her release from prison. Petitioner's attorney referred her to him for a psychological evaluation. The affidavit is accompanied by the psychologist's report. Although the evaluation showed Petitioner to have "significant emotional problems," it was clear to the psychologist that Petitioner exaggerated her symptoms for the benefit of the evaluation, and her test profiles were, therefore, only marginally valid. Even with his awareness that Petitioner was not an accurate reporter as evidenced by his several references to Petitioner's obvious attempt to influence the evaluation, the psychologist opined that Petitioner needs extended treatment and medication. There is no evidence that Petitioner has followed his recommendations. The holding in Dixon v. United States, 548 U. S. 1 (2006), makes it clear that duress is an affirmative defense and that to invoke it, a defendant must admit the crime and then affirmatively prove that the defendant was coerced by threatened unlawful and imminent harm to commit the crime. In this proceeding, Petitioner argues, inconsistently, that she did not commit a crime and that she was forced to repeatedly perform the act which constituted the crime, i.e., arranging "dates" between customers and prostitutes over a period of approximately ten years. Petitioner does not make a credible witness. Her varying explanations given at different times to different persons undermine her credibility. The purpose of this proceeding is not to determine whether Petitioner is guilty beyond a reasonable doubt of the crime of racketeering by participating in a prostitution ring, the determination that was made in her criminal trial and the test before the appellate court which overturned her conviction. Rather, in this proceeding wherein Petitioner is seeking monetary compensation for her wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that she committed neither the act nor the offense that served as the basis for her conviction and incarceration and that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. Further, she must prove her actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. A review of the appellate court opinion overturning Petitioner's conviction reveals that the State presented insufficient evidence that Petitioner knew of the unlawful nature of the "dates" she arranged. It is appropriate, therefore, that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. However, the inability or failure of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of the act or offense that served as the basis for the conviction and sentence and does not prove that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. The evidence which the State was prevented from offering at her trial by her decision not to testify-- Petitioner's letter to her mother and her statements during her recorded interview--and which, therefore, was not before the appellate court conflicts with Petitioner's testimony that she is innocent. That evidence is not verifiable and substantial evidence of Petitioner's actual innocence, which is the quality of evidence the Statute requires in this proceeding. Further, Petitioner's statements to the psychologist and his conclusions regarding her mental health are not verifiable and substantial evidence of Petitioner's actual innocence. Lastly, Petitioner’s own testimony denying her guilt is not verifiable and substantial evidence of her innocence. Petitioner argues that since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” the definition should be the one found in Black's Law Dictionary. Petitioner's argument is not persuasive. The statutory scheme under which Petitioner seeks monetary compensation in this proceeding requires more than meeting a definition in a dictionary; it requires a certain quality and quantity of evidence. The Statute regulating this proceeding does not consider the legal sufficiency of the evidence as did the appellate court when it reversed Petitioner's conviction and as does Black's Law Dictionary. Rather, the Statute seeks a determination of the factual sufficiency of the evidence by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. Based upon the evidence before the trial court, the appellate court found insufficient evidence proving Petitioner guilty beyond a reasonable doubt. Based upon the evidence in this proceeding, including evidence not presented to the jury in Petitioner's criminal trial and, therefore, not reviewed by the appellate court, there is no verifiable and substantial evidence proving that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that she is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing her Petition. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 4th day of January, 2010. COPIES FURNISHED: Honorable Nickolas P. Geeker Escambia County Circuit Judge M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Ernie Lee Magaha, Clerk of Court Escambia County M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Keith W. Weidner, Esquire Taylor, Warren & Weidner, P.A. 1823 North 9th Avenue Pensacola, Florida 32503-5270 Russell Graham Edgar, Jr., Esquire State Attorney's Office Post Office Box 12726 Pensacola, Florida 32575-2726
Findings Of Fact Question 13 on Petitioner's application for an unarmed guard license reads as follows: "Have you ever been arrested". In response thereto, Petitioner answered in the affirmative and, in accordance with the instructions to list all arrests, stated that he had been arrested for breaking and entering in 1965, at which time he served one year in prison; and that he had been arrested for armed robbery in 1969, at which time he was sentenced to five to ten years in prison. No other arrests were listed. Petitioner's application was signed under oath and recited that all information contained in the application was true and correct. Petitioner is presently on probation from his armed robbery conviction, and his probationary period will not expire until March 4, 1981. His civil rights have not been restored from that conviction, although he intends to apply for restoration upon completion of his parole period. At the time that the Petitioner's employer was assisting him in completing his application, Petitioner indicated to Mr. Martin that Petitioner had been arrested and convicted of offenses in addition to those revealed on his application. Those omitted arrests and/or convictions include fighting and unlawful assembly in 1962; assault with a knife in 1964; buying, receiving and concealing stolen property in 1966; assault and battery in 1968; and prison breach in 1974. Although Petitioner's parole officer believes he is being rehabilitated, Ms. Barrett, in the two and one-half years she has known Petitioner, only speaks to him on the telephone once a month and sees him every two months. More importantly, Ms. Barrett is unable to state that she would hire Petitioner as a security guard at her home.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A final order be entered denying Petitioner's application for a Class "F" Unarmed Guard License. RECOMMENDED this 20th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. John C. Henderson 1771 North East 176th Street North Miami Beach, Florida 33162 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Don Hazelton, Director Division of Licensing Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue Whether petitioner should suspend or revoke respondent's certification as a correctional officer for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Edward L. Bonifay, III has held a correctional officer's certificate at all pertinent times. From October 1, 1980, till November 3, 1982, he worked for the Escambia County Sheriff's Department. When he left, his certificate automatically became inactive. (Testimony of Frick) Except in emergency circumstances not pertinent here, the Escambia County Sheriff's Department has a firm, written policy against male correctional officers entering the female housing area in the Escambia County Jail unless accompanied by a female correctional officer. The Jail Operations Manual, which Mr. Bonifay purported to have read more than once, states the policy. He was told about it. Everybody who works at the jail is aware of the policy. (Testimony of Eddings) The Jail Operations Manual also stated the requirement that any escape attempt be reported in writing. Nell Vaughn shared a cell with several other women at the Escambia County Jail in September of 1982, at a time when Minnie Squires had the adjacent cell to herself. On several occasions, including at least two in September of 1982, Ms. Squires asked other inmates to summon respondent Bonifay. At least twice in September of 1982 he arrived at her cell door alone and touched her when she came to the door undressed. Ms. Vaughn, who sometimes monitored events next door through a peephole, observed this. Bonifay admitted as much to two fellow officers, although he claimed, in one rendition, that she was trying to escape and that he was obliged to grab her breast to prevent the escape, although, he conceded, maybe he did leave his hand on her breast "too long" and maybe his hand did "slide down her stomach." To Nell Vaughn it looked like he was fondling her breasts while they were both inside the cell, after any conceivable risk of escape must have been well past. Nor does the escape hypothesis explain why Ms. Vaughn saw his hand in Ms. Squires' crotch. Respondent Bonifay never made any written report of an escape attempt on Ms. Squires' part, and made no written report of having visited a woman prisoner's cell unaccompanied by a female correctional officer. Once the events of September came to light, his superiors lost confidence in him and he was unable to function as a correctional officer in the jail. His credibility was called into question and his effectiveness was lost. (Testimony of Eddings, Jones) Petitioner filed its proposed findings of fact and conclusions of law, and the proposed findings of fact have been adopted, in substance for the most part. To the extent they have been rejected, they have been deemed immaterial, cumulative, subordinate or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's certification as a correctional officer. DONE and ENTERED this 8th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 8th day of February, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Post Office Fox 1849 Tallahassee, Florida 32302 Edward L. Bonifay, III 228 Cordoba Street Gulf Breeze, Florida 32561 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent is a certified law enforcement officer and was issued certificate number 13-84-002-01 on July 14, 1984. On September 1, 1988, Respondent was employed as an investigator with the State Attorney for the Ninth Judicial Circuit working in the misdemeanor division. While on duty and driving his employment car on the evening of September 1, 1988, Respondent was in the area of Lee Street and 20th Street in Orlando, Florida. He was in the area attempting to locate a witness as part of a criminal investigation he was conducting. He had previously made the acquaintance of a person named Ruby Burk. He would on occasion drive past her house and stop and they would talk and once previously had engaged in a sex act. On the night of September 1, 1988, he went to Burk's house, talked with her and then left on a futile attempt to locate a witness. He then returned to Burk's residence, picked her up and proceeded to a dark secluded area on an unpaved street which borders an elementary school. Shortly thereafter, while on routine patrol, an Orange County Deputy Sheriff observed Respondent sitting behind the wheel of the state vehicle in a complete state of undress. When she shined her bright lights into the vehicle, the Deputy observed the head of a black female pop up from the direction of the Petitioner's lap. The Deputy recognized Burk and observed that she was fully clothed. The Deputy permitted Respondent to put his pants on before he exited his vehicle. Respondent and Burk were engaging in fellatio in the front seat of the state vehicle. At the time of the incident, Respondent was having marital problems which caused him to be despondent. In mitigation, Respondent demonstrated that he had been a certified law enforcement officer for over four years at the time of this incident and has had no prior disciplinary problems. He has performed his job in private security and as an investigator in an exemplarily capacity. In September 1988, Respondent was discharged by the State Attorney, but was given a favorable recommendation He is presently employed as a Child Protective Investigator with HRS. He is respected by his peers and in his community. The violation of the law and rules by the Respondent was an isolated incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of the following offense: Failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989). It is further RECOMMENDED that Respondent's certification be suspended for a period of six months, followed by a probationary period of one year, subject to the successful completion of such career development training and counseling as the Commission may impose. DONE AND ENTERED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 8, 9, 10, 12, 13, 14, 15, 16 (in part), 17, 18, 19 (in part), 21. Rejected as against the greater weight of the evidence or irrelevant: Paragraphs 7 (that Burk had been convicted of engaging in prostitution on Westmoreland Street), 11, 16 (in part), 19 (in part), 20, 22. Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5 (in part), 6, 7. Rejected as irrelevant or as argument: Paragraphs 5, 8 and 9. COPIES FURNISHED: Elsa L. Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Leon B. Cheek, Esquire 101 Sunnytown Road Suite 306 Casselberry, FL 32707 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Tallahassee, FL 32302
Findings Of Fact At all times pertinent to the allegations contained herein, the Department of State, Division of Licensing, was the state agency responsible for the licensing of security guards in Florida. On September 19, 1990, Petitioner, Rick Stephen Seaver, submitted an application for an unarmed security guard license and statewide gun permit to the Division. In Part V of the application, dealing with criminal history, Petitioner indicated he had not ever been convicted of a crime, and further stated he had not been convicted of any felonies. In reality, however, Respondent had been convicted of possession of marijuana in Johnson City, Tennessee, on February 19, 1981, and on October 23, 1986, was convicted of one charge of simple assault and one charge of carrying a firearm. This latter series of offenses also took place in Johnson City. When this information was made available to the Department, by a letter dated January 24, 1991, an Amended Letter of Denial, the Division denied the Petitioner's application for an unarmed security guard license, alleging that he had been guilty of fraud or willful misrepresentation in applying for or obtaining a license, in violation of Section 493.6118(1)(a), Florida Statutes; had been convicted of crimes which directly relate to the business for which the license was sought, in violation of Section 493.6118(1)((c), Florida Statutes; and failed to have the requisite good moral character called for under the provisions of Section 493.6118(3), Florida Statutes. At the hearing, Respondent withdrew as a basis for denial the allegation of fraud or willful misrepresentation and further stipulated that none of the offenses of which the Petitioner had been found guilty were felonies. It is so found. Petitioner has been married to his wife for five years. Though he did not adopt her son by a previous marriage, he has provided the sole support and guidance to the boy since the marriage, and in Mrs. Seaver's opinion, has been a good father and good husband. For the five months prior to his dismissal from employment with Jewell Security Agency, as a result of the Division's action denying him a license, Mr. Seaver worked as an unarmed security guard in Bradenton. He worked as an outdoor guard at night, unarmed, at various establishments throughout the City of Bradenton, and during his term of employment, only one business where he was on guard, was ever robbed. That one occasion took place before he came on duty the day in question and the police were able to identify the perpetrators. According to James E. Jewell, owner of the agency and Petitioner's employer, Petitioner was an outstanding employee who was always on time, never called in sick, and performed his duties in a manner felt to be a credit to the company. Jewell found Petitioner to be completely honest and trustworthy. Before working with Jewell, Petitioner worked as a baker in Sarasota for 2 1/2 years after his move from Tennessee. He left that job only because of a dispute he had with the manager over some vacation time which previously had been approved, but which was later denied him. He quit and was not discharged. Before coming to Florida he also worked as a baker in Tennessee for about 13 to 14 years without difficulty and without any criminal record other than the offenses forming the basis for the denial here. The assault charge occurred just before he and his wife were married when he used a firecracker to blow out the window of the house of an individual, then under charges for rape, who was harassing and annoying his intended wife. The charge of carrying a weapon arose out of an unloaded gun which was found under the passenger seat of a vehicle in which he was riding as a passenger when he was stopped for the assault. The assault did not involve the use of the weapon, but as a result of his plea, he was convicted and sentenced to 11 months and 29 days in jail, all of which was suspended. Prior to the trial on those offenses, from the time of his arrest, he was free on bond. The possession of marijuana charge took place in 1981 at which time Petitioner was approximately 24 years old. At that time, he was found guilty of possession of less than an ounce of marijuana and was sentenced to pay a fine of $250.00. Mr. Seaver has not had any other infractions and according to his wife, has not been cited with so much as a traffic ticket in the five years they have been married. No evidence to the contrary was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting Petitioner, Rick Stephen Seaver, a Class "D" Unarmed Security Officer License. RECOMMENDED this 23rd day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of April, 1991. Copies furnished: Henri C. Cauthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Rick Stephen Seaver 4411 21st Avenue West Bradenton, Florida 34209 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issues are whether Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761. On or about May 8, 1994, Respondent was in the front yard of his residence. Police officers pulled into Respondent's driveway and requested that Respondent approach the patrol car. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket. The item that Respondent dropped was a bag containing white powder. The white powder was cocaine. Respondent was aware of the presence of the bag on his person. Respondent's possession of the bag containing cocaine was unlawful. One of the police officers advised Respondent that he was under arrest. The police officer instructed Respondent to put his hands behind him. Respondent refused to put his hands behind him. The police officers physically restrained Respondent. Respondent subsequently entered a plea of nolo contendere to the offenses of attempted possession of cocaine and resisting officer without violence. On July 17, 1995, Respondent was adjudicated guilty of these two offenses by the county court judge, in and for Putnam County, Florida, in Case Number 95-2767MM06. The court suspended any fine or cost which might be imposed for the conviction of resisting officer without violence. The court ordered Respondent to pay a fine of $241.50, prosecution costs of $50, and an investigation cost of $50 for the conviction of attempted possession of cocaine.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 18th day of August, 1997. COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Johnnie Holcy, Jr. Route 6, Box 300 Palatka, Florida 32177 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact The applicant is currently employed by Central Security Patrol in Jacksonville, Florida. His supervisor testified in his behalf. Mersing is a good worker, dependable and trustworthy. His supervisor has known Mersing since his employment with Central Security six months ago. Mersing has never been cautioned or disciplined on the job and is employed at Container Corporation of American in Jacksonville, Florida. The applicant testified in his own behalf. The applicant stated that he had thought that the two arrests reported on Exhibit 1 had occurred while he was a juvenile. However, the applicant stated that he was sentenced to one to ten years for this offense to the prison system of the state of West Virginia. The applicant served six months in a maximum security prison and six months in a minimum security prison prior to his parole. He was discharged from parole supervision on March 25, 1968.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the applicant's application for a Class F, unarmed guard license be denied; however, that favorable consideration be given his reapplication submitted with proof that his civil rights have been restored by the state of West Virginia in the absence of any other disqualifying grounds. DONE and ORDERED this 5th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1980. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Kermit W. Mersing 301 Broome Street Fernandina Beach, Florida 32034 =================================================================
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(f), Florida Statutes (1997), by pleading or having been found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate broker pursuant to license no. 0414405. The last license issued is inactive. On December 15, 1997, Respondent entered into a plea of guilty to aggravated assault and leaving the scene of an accident with injuries. Both crimes are third-degree felonies under Sections 784.02(1) and 316.027(1)(a), respectively. The court adjudicated Respondent guilty and sentenced Respondent to two years of community control to be followed by two years probation. Both sentences ran concurrently. The court also imposed miscellaneous fines in the cumulative amount of $255 and ordered Respondent to pay probation costs. On January 13, 1998, Respondent sent a letter to Petitioner voluntarily disclosing his plea and conviction. Respondent has no prior disciplinary history. Both convictions involve a single incident which occurred on November 23, 1996, at the Draft House, 1615 Lee Road, Orlando, Florida, a bar in Orange County, Florida. Respondent touched the female owner of the bar on her buttocks. The owner's son took offense to the incident. When Respondent left the bar, the owner's son followed Respondent to Respondent's car in the parking lot. The owner's son hit Respondent in the nose with his fist. Respondent got into his car. The owner's son smashed the windshield of Respondent's car with a steel bar. Respondent left the scene to call for help. When Respondent drove away, Respondent's car struck the owner's son. Respondent did not remain at the scene because he feared for his own safety. Respondent stopped a few blocks away and called 911. The extent of injuries of the person struck by Respondent's car was not established at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(f), and imposing an administrative fine of $1,000. DONE AND ENTERED this 16th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 16th day of November, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Richard F. Ronnick 4271 Biltmore Road Orlando, Florida 32804-2201 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Teresa D. Mejico, was certified as a correctional officer by petitioner, Criminal Justice Standards and Training Commission, on February 17, 1988, and issued certificate number 03-87-502-02. At approximately 2:45 a.m., on October 3, 1988, respondent, while employed as a correctional officer at the Broward Correctional Institute, was observed by her supervisor leaning on her desk in the officer's station at Dormitory H-4. Sitting in a chair at respondent's side was Inmate Deronda Lemmonds, who was observed holding respondent's right arm, and kissing, licking and nuzzling it, while her right hand was between respondent's legs in the area of her crotch. Respondent was immediately relieved of duty, and later that day was discharged from her employment at Broward Correctional Institute for her failure to comply with Florida Department of Corrections Rule 33-4.002(28), Florida Administrative Code. That rule provides: Employees shall maintain a professional relationship with all persons in the custody or under supervision of the Department, and their immediate family or visitors. No personal or business relationships are permitted. Marriage between employees and inmates is prohibited. That respondent was fully aware of the foregoing rule, and the standard of conduct it established, cannot be gainsaid for she acknowledged such at hearing. Notwithstanding such knowledge, however, respondent persisted in fostering the personal relationship which existed between her and Inmate Lemmonds despite denials to her superintendent that any such relationship existed and counseling from her superintendent to avoid any such relationships. Following the termination of her employment at Broward Correctional Institute, respondent maintained contact with Inmate Lemmonds through the mail and by telephone, and variously expressed her affection and love for the inmate. On one occasion, she mailed the inmate 20-25 photographs of herself, including some photographs that captured respondent in partially nude and suggestive poses. In all, the proof demonstrated that respondent was romantically involved with Inmate Lemmonds while she was employed at Broward Correctional Institute, and continued to be so involved as of the date of hearing. It further demonstrated that she was untruthful with her superintendent, failed to abide the rules of conduct for correctional officers, and neglected her duty to guard Dormitory H-4 while engaged in a liaison with an inmate under her charge.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent' s certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May 1990. WILLIAM J. KENDRICK 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 24th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6410 Petitioner's proposed findings of fact are addressed as follows: 1. Adopted in paragraph 1. 2-4. Adopted in paragraph 4. 5-9. Not material or not necessary to result reached. 10-14. Adopted in paragraph 5. Adopted in paragraph 2. Adopted in paragraph 3. COPIES FURNISHED: Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Teresa D. Mejico 7502 S.W. 5th Street North Lauderdale, Florida 33068 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
