The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 19-82- 002-10. At all times pertinent hereto, Respondent was a certified law enforcement officer, and was employed by the City of Miami Police Department as a police officer. On May 31, 1985, a drug "rip-off" occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug "rip-off" occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug "rip-off" occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Zabala did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Rudolfo Arias , Regino Capiro, and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and who were, at the time of the formal hearing, incarcerated in the federal prison system. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for certain benefits that he received. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had incriminated. Mr. Pedrera refusal to testify was in spite of a plea agreement similar to that of Mr. Arias. Mr. Arias was an officer with the City of Miami Police Department in 1985 who knew Respondent as a fellow officer and as a former neighbor. The following allegations are based on information provided by Mr. Arias to Agent James E. Judd during the course of his debriefing by the Federal Bureau of Investigation: 2. a) On or about dates in April 1985, Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully fail or refuse to report to his superiors or otherwise take official action upon learning that fellow officers, including Felix Beruvides and Ricardo Perez, had committed, and intended to commit in the future, the crimes of possession of in excess of 28 grams of a mixture containing cocaine and theft. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully agree, conspire, combine or confederate with Felix Beruvides, Armando Estrado, Roman Rodriguez, and Armando Un-Roque, to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. On or about a date in April 1985, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully attempt to be in actual or constructive possession of more than 28 grams of a mixture containing cocaine, a controlled substance defined by Section 893.03, Florida Statutes. These allegations stem from information Mr. Arias gave regarding the alleged attempted rip-off of cocaine from a freighter on the Miami River on an unknown date in 1985. The last name of the captain of this freighter was "Rhoda", and this incident was referred to at the hearing as the Rhoda incident. Respondent allegedly drove a fellow law enforcement officer, Felix Beruvides, to meet with certain men as part of a conspiracy to steal certain drugs from this freighter. These men, some of whom were referred to as Marielitos, planned to forcibly enter the freighter using their weapons and to steal cocaine that had been smuggled into Miami on the freighter. Mr. Arias was not present at this drug rip-off and his knowledge of this incident is based exclusively on his conversations with the Respondent and with Mr. Beruvides. Mr. Beruvides was not presented as a witness at the formal hearing. It was the conclusion of Mr. Arias from his conversations with Respondent that the Respondent knew that Mr. Beruvides was engaged in wrongdoing, but that Respondent had not been deeply involved in the Rhoda conspiracy. Mr. Arias testified that Respondent may have functioned as a lookout, but that, at a minimum, he was aware of this criminal activity and that he did not report it to his superiors. Mr. Arias's testimony as to conversations he had had with Respondent was vague as to when the conversation(s) occurred and as to what Respondent said. Mr. Arias had never seen Respondent in the possession of cocaine or other drugs. Lieutenant Paul Shepard testified as to certain hearsay statements and as to a photographic lineup identification made by one Armando Un Roque, one of the Marielitos supposedly involved in the Rhoda rip-off. Mr. Un Roque did not testify at the formal hearing. Mr. Un Roque identified Respondent as being the driver of a red Trans Am who met with himself, Mr. Beruvides, and others when the Rhoda drug rip-off was planned. Mr. Un Roque told Lt. Shepard that he and others boarded the freighter, but that they abandoned their attempted rip-off after realizing that the ship was too big for them to search by themselves. 1/ The evidence presented by Petitioner of Respondent's knowledge and possible participation in the Rhoda rip-off is met by Respondent's credible denial of any knowledge as to the alleged events. Although Respondent was driving a red Camaro (which is similar in style to a Trans Am) during the time these events allegedly occurred, his testimony that he had given Mr. Beruvides a ride home following their shift in his red Camaro and that they stopped at a convenience store patronized by Marielitos provides a plausible explanation as to how Mr. Un Roque acquired that information. Additionally, FBI Agent Judd testified that the Rhoda rip-off never actually occurred. The conflicts in the record relating to the allegations found in Paragraph 2(a), (b), and (c) of the Amended Administrative Complaint are resolved in favor of Respondent and against Petitioner. It is concluded that the Petitioner has failed to establish by clear and convincing evidence the factual basis for those allegations, to-wit, that he conspired to participate in this alleged criminal activity or that he was aware of that activity. The remaining allegations of the Amended Administrative Complaint pertain to information given to FBI Agent Judd by Mr. Arias during his debriefing as to money Mr. Arias gave to Respondent. Those allegations, from Paragraph 2 of the Amended Administrative Complaint, are as follows: On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully solicit, request, accept or agree to accept money, to-wit: $1,000 in U. S. currency, as an inducement to testify or inform falsely, or withhold testimony or information, upon his testimony as a witness in a proceeding instituted by a duly constituted prosecuting authority of the State. On or about a date in July 1986, the Respondent, Edwin M. Zabala, while employed as a police officer by the Miami Police Department, did then unlawfully accept from Rudolfo Arias, $1,000 in U. S. currency, knowing or believing the money to be the proceeds of an unlawful controlled substance transaction. The original indictment of Mr. Arias was handed down in December 1985, but ended in a mistrial. Mr. Arias was among those defendants reindicted in federal court in 1986. Following the rearrest of Mr. Arias and his incarceration pending trial for his alleged involvement in the Miami River Cops cases in 1986, the court held a bond hearing to determine whether Mr. Arias would be released from jail on bond and, if so, the appropriate amount of bond. Respondent was contacted by Mr. Arias's wife and by his father and asked to testify on behalf of Mr. Arias as a character witness at the bond hearing. Respondent agreed to do so and voluntarily made himself available to the court. His testimony at the bond hearing was not necessary since the court limited the amount of character testimony that would be heard. At no time prior to this bond hearing had Respondent been offered any financial inducement to testify. Following his discharge from jail, Mr. Arias visited Respondent's home and gave to the Respondent the sum of $1,000 and a bottle of whiskey. Mr. Arias testified that the $1,000 was a gift to Respondent and was in appreciation for his being available at the bond hearing and for his willingness to testify. Mr. Arias testified that the money he gave to Respondent was drug money, but that he never told Respondent the source of the funds. Mr. Arias believed that the Respondent should have known that the source of the $1,000 was from drug transactions because he and the Respondent had engaged in general conversations as to ways to make money illegally. Respondent admitted that Mr. Arias gave to him the sum of $1,000 and the bottle of whiskey. Respondent testified that $500 of that sum and the bottle of whiskey were gifts, but that the remaining $500 of the sum given to him by Mr. Arias was in repayment of a loan that Respondent had made to Mr. Arias. Respondent testified that he had previously loaned to Mr. Arias's the sum of $500 so that Mr. Arias's girlfriend could have an abortion without Mr. Arias's wife finding out. Mr. Arias admitted that his former girlfriend had had an abortion, but he denied that he had borrowed money from Respondent to secretly pay for the abortion or that any part of the $1,000 was in repayment of a loan. This conflict in the testimony is resolved by finding that Mr. Arias gave to Respondent the sum of $1,000 and a bottle of whiskey following the July 1986 bond hearing and that at least $500 of that sum was a gift in appreciation for his being available at the bond hearing and for his willingness to testify. The evidence does not establish that the money was in exchange for Respondent's willingness to provide false testimony. Mr. Arias maintained that he was innocent of the charges brought against him until after he had given Respondent the $1,000 in July 1986. Mr. Arias did not admit his guilt to these charges until 1987. While Respondent may have had a reasonable basis upon which to speculate as to the source of the money he had received from Mr. Arias, he was not told the source of these funds by Mr. Arias and he had no direct knowledge as to the source of these funds. It is concluded that there was insufficient evidence to establish that he knew that the funds had been illegally obtained.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Edwin M. Zabala. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1991.
Findings Of Fact On February 26, 1987, Petitioner determined that Respondent met all criteria for certification as a law enforcement officer and issued to him Certificate Number 3-86-502-09. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer employed by the City of Fort Lauderdale Police Department Detention Center (Jail). Respondent is a large, physically imposing man who is 6'2" tall and weighs well over 200 pounds. COUNT ONE On October 22, 1988, Reggie Nickens was arrested during a narcotics sting and was transported to the Jail, where he was booked as an arrestee. During the time Mr. Nickens was being transported to the Jail by Police Officer Richard Temple, Mr. Nickens was argumentative and unhappy with his predicament. However, Mr. Nickens was not physically belligerent, offered no physical resistance, and did not appear to be intoxicated. Mr. Nickens had no injury or medical treatment that required treatment when he was booked into the Jail. Mr. Nickens is less than 6 feet tall and weighs approximately 100 pounds less than the Respondent. On the night shift of October 22-23, 1988, Respondent was on duty as a detention officer in the Jail working under the supervision of Lt. Harry Marsh. At the time Respondent came on duty, Mr. Nickens was in a holding cell. After he came on duty, Respondent was asked to photograph Mr. Nickens. Respondent removed Mr. Nickens from the holding cell to photograph him with a Polaroid camera. Respondent did not follow proper jail procedure in removing Mr. Nickens from the holding cell in that he did not request proper backup and he did not have handcuffs on his person. Handcuffs are considered by the City of Fort Lauderdale Police Department to be standard equipment, and Respondent was expected to have handcuffs on his person at all times when on duty. Mr. Nickens was not handcuffed when Respondent removed him from the holding cell, even though he had been verbally belligerent while in the holding cell. Two video cameras record the movement of individuals in the booking area of the Jail, including the activity described in the following paragraphs. When Respondent removed Mr. Nickens, from the holding cell, Mr. Nickens, who is white, began to verbally abuse the Respondent, who is black, with racial slurs. Mr. Nickens moved around the Respondent, with his hands at his side. Although Mr. Nickens was verbally abusive and yelled in Respondent's face, he did not exhibit any threatening action with his hands. Respondent grabbed Mr. Nickens in the area of his neck, lifted him off his feet, pinned him against the wall of the booking area, slammed him to the floor, and jumped on top of him. Respondent was the physical aggressor in this incident and was not acting in a defensive posture. Mr. Nickens committed no physical act which could reasonably have been interpreted by Respondent as putting Respondent in physical jeopardy. Mr. Nickens submitted to Respondent's superior strength and did not make an effort to strike or otherwise resist when Respondent grabbed him by the throat. There was testimony that a hypoglossal hold is a self-defense technique that is taught at the Broward County Police Academy. To use this technique, one grabs an aggressor in the neck area and applies pressure to certain pressure points on the neck and under the jaw. There was conflicting testimony as to whether such a technique would be a permitted technique for use at the Jail to restrain a prisoner. Clearly, Commander Borino and the other supervisors who are responsible for the Jail's operation do not approve of the hypoglossal technique. Respondent asserts that he utilized the hypoglossal technique and then took Mr. Nickens to the floor and placed him in the prone position because Mr. Nickens resisted. The contention that Respondent used an approved self-defense technique in dealing with Mr. Nickens is rejected as being contrary to the greater weight of the evidence. The evidence clearly and convincingly establishes that Respondent was not acting in self-defense in dealing with Mr. Nickens and that the force he used was excessive. After Mr. Nickens was taken to the floor, he was handcuffed with cuffs supplied by one of the other officers on duty at the Jail. Although he was provoked by Mr. Nickens verbal abuse, Respondent used excessive force in dealing with Mr. Nickens which escalated during the course of the incident. Commander Borino was of the opinion that no force was necessary. Had force been necessary, an arm restraint would have sufficed until the other officers on duty could have arrived to assist Respondent. Officer Gooden, who was in the booking area with an inmate, did not react properly to the situation. Officer Gooden allowed his inmate to roam freely in the booking area during the incident and did not attempt to intervene until after Respondent had taken Mr. Nickens to the floor. Officer Gooden should have immediately secured his inmate and stepped in to stop the incident as soon as he saw Respondent choking Mr. Nickens. It was not established that Officer Gooden's intervention would have prevented the incident. Prior to the incident involving Mr. Nickens, Respondent had been counseled by Lt. Marsh that the use of a choke hold on an inmate was unacceptable procedure. Respondent received no physical injury as a result of this incident. Mr. Nickens, however, was injured as a result of Respondent's actions. Lt. Marsh, the supervisor at the jail at the time at question and Barbara Rogers, the licensed practical nurse on duty at the Jail, responded to a call for backup. They found Mr. Nickens in a prone position with red marks on his neck. Blood was coming from his mouth, and he was coughing up phlegm with red blood in it. Because Nurse Rogers and Lt. Marsh were concerned that Mr. Nickens had suffered a serious injury, he was ordered transported from the Jail to Broward General Medical Center to receive medical treatment. There was no evidence that Mr. Nickens injuries were serious. COUNT II During the late evening hours of June 17, 1989, John Wroble, who was intoxicated, started a fight in a bar and sustained an injury to his eye that resulted in a black eye. After the fight, Mr. Wroble was arrested and transported to the Jail. Kevin Shults, an off-duty Fort Lauderdale Police Officer, arrested Mr. Wroble. Officer Shults observed the injury to Mr. Wroble's eye, but he did not observe an injury to his chin or any other injuries to Mr. Wroble. Officer Shults did not observe any blood on Mr. Wroble's shirt or chin at the time of the arrest. Mr. Wroble was intoxicated and submissive at the time of his arrest. Officer Albert Lustig, Jr., was the booking officer at the time Mr. Wroble was received into the Jail. Officer Lustig observed no injury to Mr. Wroble's chin and observed no blood on Mr. Wroble's shirt. Mr. Wroble was cooperative at booking. Respondent was on duty and serving as the officer in charge of the booking area at the times pertinent hereto. Lt. Glen Schrier, whose office was on the floor above the booking area, was the shift supervisor. Mr. Wroble was processed in to the Jail and placed in a holding cell with other inmates. However, no photographs or prints were taken of Mr. Wroble during the time of his incarceration. In that holding cell, Mr. Wroble became verbally belligerent and threatened to spit on the officers. Thereafter, Officer Nangle entered Mr. Wroble's cell, placed him face down on the floor, handcuffed his hands behind his back, shackled his legs, and handcuffed the restraints holding his hands to those holding his legs. This procedure was referred to as hog-tying an inmate. Mr. Wroble continued to be threatening and disruptive. Thereafter, Respondent ordered Mr. Wroble transferred to a single occupancy cell, which was on the floor above the booking area. Officer Nangle, with Officer McDonough as his backup, entered the holding cell and removed the handcuff that was holding his feet to his hands and removed the leg shackles. Respondent entered the holding cell and took over from Officers McDonough and Nangle. Mr. Wroble remained handcuffed with his hands behind his back. Respondent, who is a much larger man than Mr. Wroble, escorted Mr. Wroble from the holding cell to the elevator to the next floor. The distance between the holding cell and the elevator is approximately 40 steps. It normally takes 3 to 5 seconds to cover this distance. Respondent held Mr. Wroble's shoulder area with one hand and grabbed the back of Mr. Wroble's hair with the other hand so that Wroble's chin was pointed upward. Respondent directed Mr. Wroble into the elevator. When Mr. Wroble entered the elevator, Officers McDonough and Nangle heard a thud, which was caused by Mr. Wroble's body making contact with the rear of the elevator. Officers McDonough and Nangle followed Respondent and Mr. Wroble onto the elevator, but had no physical contact with Mr. Wroble, who remained under Respondent's control. Respondent forced Mr. Wroble against the rear of the elevator with his elbow. When Respondent and Mr. Wroble exited the elevator, Mr. Wroble was bleeding from a laceration to his chin, and blood had stained his shirt. There was a spot of blood outside the elevator after Respondent and Mr. Wroble had exited the elevator. Officers McDonough and Nangle had observed no injury to Mr. Wroble's chin prior to his being escorted onto the elevator by Respondent. Lt. Schrier saw Respondent and Mr. Wroble exit the elevator. Upon seeing the injury to Mr. Wroble's chin, Lt. Schrier called Nurse Barbara Rogers, who was on duty at the time of the incident. She examined Mr. Wroble and observed a gaping laceration under his chin with the fatty tissue exposed. The wound was bleeding profusely. Nurse Rogers wanted to send Mr. Wroble to the hospital to have the wound sutured, but he refused treatment. Nurse Rogers was of the opinion that the wound she observed was consistent with blunt trauma. Respondent used excessive force in dealing with Mr. Wroble. Although Respondent was justified in being concerned about Mr. Wroble's risk of spitting on the officers, gear, such as helmets or masks, was available to prevent such conduct. The manner in which Respondent escorted Mr. Wroble from the holding cell to the elevator, especially the grabbing of his hair, was not justified. The fact that Mr. Wroble was making verbal threats of physical action does not justify the manner in which Mr. Wroble was escorted by Respondent from the holding cell to the elevator. Because of his level of intoxication, Mr. Wroble had difficulty walking, but he posed little threat of physical harm to Respondent or the other officers. Less restraint, such as having an officer on either side of Mr. Wroble to prevent him from falling or attempting to resist, should have been employed. There was a dispute as to how Mr. Wroble received the laceration to his chin. Respondent contends that he does not know how the injury occurred, but that he did not cause it. Petitioner contends that the circumstantial evidence clearly and convincingly establishes that Mr. Wroble received the injury as a result of being shoved onto the elevator by Respondent and coming in contact with the rear of the elevator. This dispute is resolved by finding that Mr. Wroble received the injury when his chin struck the rear of the elevator after he was shoved onto the elevator by Respondent. COUNT III On September 1, 1989, Respondent issued two drafts on his personal credit union account to King Motor Company as part of a down payment for the purchase of a truck. Draft #181 in the amount of $500.00 was tendered first. After financing was arranged, it was determined that Respondent would have to pay an additional sum of $200.00, making the total down payment $700.00. The balance of the down payment was paid on September 1, 1989, by Respondent's draft #182 in the amount of $200.00. Both drafts were drawn on an account for which Respondent was the sole signatory. Following the tender of the down payment, Respondent took possession of the truck. Respondent's draft #181 was dishonored because the account had insufficient funds to honor the draft. Respondent's draft #182 was honored. Respondent's account did not have sufficient funds to pay draft #181 until September 8, 1989. When he wrote the two drafts to King Motors, the balance in Respondent's account was $39.48. (A deposit in the amount of $490.00 on September 6, 1989, provided the funds necessary to honor draft #182.) Respondent explained that the salesman at King Motor Company had agreed to hold check #181 for ten days to give Respondent time to make a deposit into his account. The manager of King Motor Company testified that such an agreement would have been against company policy and that he was unaware of any agreement to hold the check. The salesman with whom Respondent dealt was not called as a witness at this proceeding, and there was no documentary evidence as to this collateral agreement. Consequently, it is concluded that Respondent has failed to prove his assertion that there was an oral contract that changed the term of his written agreement with King Motor Company. After making several unsuccessful efforts to contact Respondent, King Motor Company filed a complaint against Respondent with the City of Sunrise Police Department. Detective Ray Meinberg of the City of Sunrise Police Department contacted Respondent on or about December 26, 1989, and advised him that he was conducting an investigation of the complaint. Respondent advised Detective Meinberg that he would make restitution within two weeks. Detective Meinberg advised that he would proceed with the investigation. Restitution was not made before Det. Meinberg completed his investigation. Arrest documents were prepared and Respondent was arrested on felony charges. On January 3, 1990, (the receipt by King Motors was erroneously dated 1-3-89) Respondent made restitution to King Motor Company, and the criminal charges were subsequently dismissed. Respondent's employment with the City of Fort Lauderdale Police Department was terminated because of the worthless bank check charge, and there was no evidence that Respondent has worked as a law enforcement officer since his termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enters a Final Order which adopt the findings of fact and conclusions of law contained herein and which revokes Certificate Number 3-86-502-09 issued to Respondent on February 26, 1987. DONE AND ORDERED this 22nd day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7255 The following rulings are made as to the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 23, 24, 25, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 46, 48, 50, 52, 53, 55, 56, 57, 65, 66, 67, 68, 69, 70, 72, 73, 74, and 76 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 20 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in the first and third sentences of paragraph 21 are subordinate to the findings made. The proposed findings of fact in the second and fourth sentences of paragraph 21 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 22, 58, 60, 61, 62, 63, 64, 71, and 75 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 45, 47, 51, and 54 are adopted in material part by the Recommended Order or are subordinate to the findings made. COPIES FURNISHED: Susan L. Somers, Esquire Florida Department of Law Enforcement 7265 N.W. 25th Street Miami, Florida 33122 Larry Bowen 4076 Sierra Terrace Sunrise, Florida 33351 A. Leon Lowry, II, Director Division of Criminal Justice Standards & Training Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact From December 10, 1982, until the present, the Respondent Knoxon Motel, located at 7411 Northeast Biscayne Boulevard, Miami, Florida, was licensed by the Petitioner Division of Hotels and Restaurants, as a motel business and holds license no. 23-08193H. The Knoxon Motel is located in an area of Miami which is known to be a place where prostitution is open and widespread. This condition has existed for approximately 12 to 13 years. Of the numerous motels and apartments in the area, the Knoxon has presented one of the biggest problems for law enforcement officers in their attempts to stop prostitution activities along Biscayne Boulevard. It is a common sight to see prostitutes flagging customers from the street and walking back and forth in front of the Knoxon waiting for prospective customers to drive by. The owner of another motel across the street from the Knoxon, Aaron Manes, has lost customers as a result of prostitutes following them into his motel in search of business. The problem is so serious that a unit of Mane's motel cannot be rented because of the noise that comes from the Knoxon. Manes has called the police over the past year at least once a day with complaints regarding prostitutes around the Knoxon, but so far has been unable to permanently solve the problem. The management of the Knoxon has been warned by police officers regarding prostitution activities at the Knoxon following the arrest of various females in and around the premises. The prostitutes who frequent the area around the Knoxon typically do not rent rooms themselves but instead use a go- between such as a pimp to secure a place to meet customers. Prostitutes have been observed standing in doorways and in front of open doors at the Knoxon partially and totally nude. This activity has been visible from the street. The owners of the Knoxon acknowledge that prostitution is a serious problem in the area but denied that their problems were any worse than other motels in the area. Management of the Knoxon considered installing surveillance equipment but decided against it due to a $5,000-$6,000 cost. Given the undisputed prostitute problem in the area, what has been openly observed at the Knoxon, and what had been told to management by police officers, the Respondents knew or reasonably should have known that a serious prostitution problem existed at the motel. Despite such knowledge, specific and substantial steps were not undertaken to solve the problem. The south side of the Knoxon, which is not visible from the manager's office but is the focal point of the building from the street, has been openly utilized by prostitutes without any apparent fear of detection by the Knoxon's management.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent's hotel license no. 23-01893H be suspended for one year subject to the condition that upon the Division of Hotels and Restaurants' being assured that adequate steps have been taken to prevent the use of the premises of the Knoxon for the purpose of prostitution, the suspension would be lifted. DONE and ENTERED this 17th day of February, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-8675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1984.
The Issue The issue in this case is whether, pursuant to section 112.3173, Florida Statutes (2012),1/ Petitioner forfeited her Florida Retirement System ("FRS") Investment Plan account by having pled guilty/nolo contendere to felony counts of insurance fraud, grand theft, and patient brokering.
Findings Of Fact The Parties Petitioner, Nancy Maradey, was employed as a bus driver by Miami-Dade Transit ("MDT"), a unit of Miami-Dade County government, between January 2003 and July 2012. Respondent, SBA, is the entity of Florida state government that administers the FRS Investment Plan, a defined retirement benefits contribution plan.2/ § 121.4501(1), Fla. Stat. Events Giving Rise to this Proceeding While Petitioner was employed at MDT, she participated in the FRS Investment Plan through her employment with MDT.3/ Petitioner worked a split shift at MDT. This meant that she would punch in her time card in the morning, drive a route, return to the bus station, punch out her time card, return in the afternoon, punch in her time card again, and drive another route. While Petitioner was employed at MDT, a co-worker approached her regarding obtaining treatment at AJZ Medical Center ("AJZ"), a clinic located in close proximity to the MDT bus station. This co-worker told Petitioner that if she went to AJZ, she could receive therapy and be paid money for it. Petitioner claimed that she experienced back pain due to having undergone gastric bypass surgery. She sought and received treatment, consisting of massage and electric shock or stimulation, at AJZ on numerous occasions.4/ It was Petitioner's understanding that AJZ billed an insurance company5/ for the treatments. When the insurance company paid AJZ, AJZ then paid kickbacks to Petitioner. Petitioner estimated that she received between $5,000 and $6,000 in kickbacks from AJZ for receiving the treatments. An AJZ employee told Petitioner that if she referred others to AJZ for treatment, she would receive additional money from AJZ for those referrals. As a result of that communication, Petitioner referred her co-workers at MDT to AJZ for treatment. She told them that if they were treated at AJZ, they would receive money. Petitioner testified that it is common for bus drivers to have back and knee pain. Petitioner referred to AJZ only co- workers who she knew had injuries. On one occasion, Petitioner accompanied a co-worker to AJZ and informed AJZ personnel that the co-worker was there to receive treatment. Petitioner recruited only her co-workers to receive treatment at AJZ. She did not recruit anyone for treatment at AJZ who was not one of her co-workers at MDT. Petitioner claims that despite being told she would receive money for referring others to AJZ, in fact she did not receive any money for the referrals.6/ Petitioner and her co-workers were in the MDT bus station when they had discussions during which she referred them to AJZ.7/ Petitioner told her co-workers it would be easy for them to seek treatment at AJZ because it was close to the bus station. Petitioner was arrested in August 2012 and charged with felony counts of insurance fraud, grand theft, and patient brokering. All of Petitioner's conduct underlying the criminal charges took place while she was employed at MDT. On February 19, 2013, Petitioner entered into a plea agreement in Case No. F-12-20328G,8/ under which she pled guilty to felony counts of insurance fraud, grand theft in the second degree, and patient brokering for her actions in seeking treatment and receiving kickbacks from, and referring others to, AJZ for money. One of the conditions of the plea agreement was that Petitioner not seek future employment with state, county, or municipal government. As a condition of the plea agreement, adjudication would be withheld on these offenses if Petitioner cooperated with the State in investigating the matter. On July 22, 2013, Respondent formally notified Petitioner that as a result of her having pled guilty to felony counts of insurance fraud, grand theft, and patient brokering, she violated section 112.3173, which provides for forfeiture of the right to retirement benefits under the FRS upon a plea of guilty or nolo contendere to a specified offense. Petitioner's guilty plea was changed to a plea of nolo contendere on October 17, 2013.9/ Petitioner admitted that she knew, at the time she committed the offenses to which she pled guilty/nolo contendere, that her actions were wrong. Findings of Ultimate Fact The evidence establishes the existence of a nexus between Petitioner's employment as a bus driver with MDT and her participation in the crimes to which she pled guilty/nolo contendere. Specifically, Petitioner used the personal and professional relationships with her co-workers that she had developed through her employment at MDT and her consequent knowledge of their conditions——i.e. back and neck pain——to recruit them for participation in the insurance fraud scheme by referring them to AJZ. She recruited only her co-workers at MDT for participation in the scheme, and specifically recruited only those who she knew had pain issues. She went so far as to accompany one of her co-workers to AJZ and inform the staff at AJZ that her co-worker was there for treatment. She engaged in conversations with her co-workers while physically present on the MDT premises during which she recruited them for participation in the scheme by referring them to AJZ. But for her employment with MDT, Petitioner would not have had access to, or enjoyed the relationships with, the other MDT employees she recruited for participation in the criminal scheme, and she would not have had the knowledge of their conditions which made them targets for her recruitment efforts. Throughout all of this, Petitioner knew that her actions were wrong; nonetheless, she continued to engage in those actions. Her actions were thus done willfully and with intent to defraud the public of her faithful performance of her duties as a bus driver employed by MDT, her public employer. Plainly put, the public had a right to expect that one of its employees would not use the relationships, knowledge, and physical access to public premises and other public employees that she gained through her public employment to commit crimes. The public was defrauded when Petitioner used the relationships, knowledge, and access that she gained through her public employment position to commit crimes. The evidence further establishes that through Petitioner's use of her public employment position, she realized, obtained, and attempted to realize or obtain, a profit and gain. As discussed above, Petitioner was recruited by a fellow co-worker to seek and obtain treatments from AJZ in exchange for monetary kickbacks. Through her employment, she became involved in the insurance fraud scheme and realized financial profit and gain by receiving the kickbacks. She also used her position as an MDT employee to recruit other MDT employees for involvement in the scheme by referring them to AJZ; she did this for the specific purpose of realizing and obtaining financial profit and gain through payments from AJZ in exchange for referring co-workers for treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of specified offenses that were committed prior to retirement, and that pursuant to section 112.3173 she has forfeited all of her rights and benefits under the FRS Investment Fund, except for the return of her accumulated contributions as of the date of her termination. DONE AND ENTERED this 16th day of January, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 16th day of January, 2014.
The Issue Whether Respondent, the holder of a Class "D" Security Officer License and a Class "G" Firearm License, committed the misconduct alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the holder of Class "D" Security Officer License D92-01223 and Class "G" Statewide Firearms License G96-01346. At the times pertinent to this proceeding, Respondent was employed as an armed security guard for Wells Fargo Security in Palm Beach County, Florida. His assigned post was at the Community Savings Bank (the Bank) in Riviera Beach, Florida. There was typically only one guard assigned to that post. The Bank is located in a high crime area of Riviera Beach. Respondent was the only guard assigned to the Bank on June 5, 1996. Respondent was on duty at the Bank from 7:00 a.m. to 7:00 p.m., five days a week. He was to provide security for all five floors of the main bank building, an adjacent single story building that contained supplies, and the parking areas. His duties included escorting Bank personnel and customers between the parking areas and the Bank, and he was required to carry a radio so that Bank personnel could contact him when someone needed an escort. The radio he carried had a radius of 1.5 miles. At the times pertinent to this proceeding, Michael Ross was employed by Wells Fargo and had direct supervisory authority over the Respondent. Mr. Ross instructed Respondent that he could leave the Bank premises only to pick up a sandwich. He was instructed to take his breaks and eat his lunch on Bank premises. On June 5, 1996, Respondent was on duty at the Bank. At approximately 11:00 a.m. that day, Mr. Ross spoke with Sheila Owens, the bank's operation manager, in an effort to locate the Respondent. Mr. Ross wanted to discuss with the Respondent certain changes in the work schedule. Ms. Owens advised Mr. Ross that she would attempt to locate Respondent and that she would call him back. A few minutes later, Ms. Owens called Mr. Ross and told him that she could not locate Respondent. Mr. Ross became concerned that the post was unattended. Because the Bank is in a high crime area, he was also concerned that the Respondent may have become the victim of an act of violence. Mr. Ross drove to the Bank, arriving at approximately 12:30 p.m. on June 5, 1996. He and Ms. Owens searched the entire Bank premises. Mr. Ross attempted to contact Respondent by radio and by Respondent's personal beeper number. The page Mr. Ross left for Respondent was not returned. Mr. Ross tried to locate the Respondent for approximately two hours. He called the Riviera Police Department because he feared for Respondent's safety. Two Riviera Police Department cars arrived at the scene at approximately 2:30 p.m. on June 5, 1996. About the time the police arrived, Mr. Ross saw Respondent walking through the Bank's parking lot. Respondent told Mr. Ross that he had been at a beeper store that was approximately 200 yards from the Bank. That explanation is not credible because Respondent could have been contacted by radio if he had been within a mile and a half of the Bank. Respondent was absent from his post without credible explanation for at least two hours on June 5, 1996. Wells Fargo thereafter lost the security contract it had with the Bank.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class “D” Security License be revoked. It is further recommended that no action be taken against Respondent's Class "G" Statewide Firearm License. DONE AND ENTERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1997 COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Mr. James B. Brown 1031 West 1st Street Riviera Beach, Florida 33404 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue is whether Petitioner may revoke the license of Respondent to operate three group home facilities for failing a background screening due to a conviction of a felony for the possession of Cannabis with an intent to sell or deliver and a failure to disclose this conviction on his license application.
Findings Of Fact Respondent holds licenses issued by Petitioner for the operation of three group home facilities, known as Shibor Group Home No. 1, Shibor Group Home No. 3, and Shibor Group Home No. 4. Each license is for a term of one year. Mr. Orukotan is the sole corporate officer and shareholder of Respondent. In his capacity as an officer and employee of Respondent, Mr. Orukotan has completed and filed several applications for annual licensure of the three group homes identified in the preceding paragraph. In the affidavit portion of each application, Mr. Orukotan has answered, under oath, "no" to the question: "Have you or anyone identified as a board member or party to ownership, been convicted of a misdemeanor or felony?" By information dated October 11, 2001, the state of Florida alleged that, on September 12, 2001, Mr. Orukotan knowingly possessed MDMA, in an amount of at least 10 grams of MDMA, but less than 200 grams, and Cannabis, in excess of 20 grams. Both counts alleged violations of various provisions of chapter 893, Florida Statutes. Over three years later, Mr. Orukotan was tried in Broward Circuit Court, Case No. 01-15907CF10A, on three charges: a felony charge of trafficking in MDMA, a felony charge of possession of Cannabis, and a misdemeanor charge of an inoperative headlamp on a motor vehicle that he was operating at the time of his arrest. For 522 days of the interval between his arrest and trial, Mr. Orukotan was incarcerated. By a Circuit Court Disposition Order dated April 6, 2005, and presumably entered contemporaneously with the jury trial, the judge documented that the headlamp charge had been dismissed, Mr. Orukotan had been acquitted of the MDMA charge, and Mr. Orukotan had been convicted of a Cannabis charge-- specifically, Mr. Orukotan had been convicted of the "LIO"-- presumably meaning "lesser included offense"--of "poss cannabis"--obviously meaning possession of Cannabis. Adjudicating Mr. Orukotan guilty of the Cannabis charge, the court imposed a sentence of 364 days, so that, with credit for 522 days' incarceration, Mr. Orukotan was released from custody. The court appears not to have imposed a fine, but imposed court costs of about $200. The disposition order does not cite the statute on which Mr. Orukotan was adjudicated guilty, nor does it designate the lesser included offense as a felony or a misdemeanor. The disposition order does not describe any of the three charges as a felony or misdemeanor. Based on the length of the sentence, which is the maximum for a misdemeanor, and the notation, "lesser included offense," the greater weight of the evidence supports a finding of a conviction of a misdemeanor, not a felony, relating to the possession of Cannabis. Significantly, Petitioner has not contended in its proposed recommended order that Respondent was convicted of a felony Cannabis charge. Mr. Orukotan testified that, when he completed the above-described affidavits, he believed that he had been found not guilty of all charges. From Mr. Orukotan's perspective, after spending about one and one-half years in jail, it is entirely plausible that he went to trial, won, and was released with a small charge. Mr. Orukotan displayed no obvious cognitive difficulties during the hearing, but he spoke heavily accented English, and English may not be his native language. Regardless, if the actual trial and post-trial processes bore any of the ambiguity that characterizes the disposition order, Mr. Orukotan was understandably confused about what had transpired and may reasonably have concluded that he had been found not guilty of all charges, so that his failure to disclose the actual misdemeanor conviction on the applications was entirely inadvertent and excusable. The background screening report was not introduced into evidence. Petitioner's sole witness testified that she does not review the background screening; she reviews the work of the employee who reviews the background screening and does not read the background screening report itself. Petitioner's witness understood that Respondent's offense did not appear in the FBI screening, but only in the local screening.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of March, 2018. COPIES FURNISHED: Abimbola Orukotan, Manager Shibor Group, Inc. 5717 Mayo Street Hollywood, Florida 33023 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Daniel Manry, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to LS Motorsports, LLC and Larkin Motorworks, LLC d/b/a St. Pete Scooter to sell motorcycles manufactured by Zongshen Industrial Group (ZONG) at 3029 Dr. Martin Luther King, Jr. Street North, St. Petersburg (Pinellas County), Florida 33704. Filed October 23, 2009 9:50 AM Division of Administrative Hearings. I DONE AND ORDERED this Jl)/f.,.,,,day of October,, 2009, in Tallahassee, Leon County, Florida. RL A. FORD, Direc or Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divi otor Vehicles 3 this day of October, 2009. N airiN . o.i.r AdmlnilntOr NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Chris Densmore Scooter Escapes, LLC d/b/a Scooter Escapes 1450 1st Avenue North St. Petersburg, Florida 33705 Ron Larkin Larkin Motorworks, LLC 3029 9th Street North St. Petersburg, Florida 33704 Mathu Solo LS Motorsports, LLC 10215 South Sam Houston Parkway West, Suite 100 Houston, Texas 77071 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
