The Issue The issue at the hearing was whether Petitioner is delinquent in the progress of State Project Number 72160-3553 pursuant to Rule 14-23.001, Florida Administrative Code.
Findings Of Fact On September 30, 1987, the Department received bids on Stat Project number 72160-3553. On November 16, 1987, the Department awarded the project to Petitioner. The project consisted of the expansion and improvement of the Godby Lake Bridge on State Road 13 near Orange Park, Florida. In addition to widening the bridge, the project entailed curbs, sidewalks and relocating high tension power lines and poles from the west side of the bridge to the east side of the bridge. Because of the power poles and the location of the bridge in the surrounding area the work had to be performed on the east side of the bridge first. The power poles and lines would be moved from the west side of the bridge to the east side of the bridge second. The work on the west side of the bridge would be completed third. Additionally, the work had to performed without shutting down the lanes to traffic. However, later in the project, the Department decided to waive the lane requirement in order to facilitate the remaining work on the project. Under the contract, time was of the essence for the project. Contract time extensions for the project were governed in the contract as follows: The Department may grant an extension of contract time when a controlling time of work is delayed by factors determined to be beyond the Contractor's control which could not be reasonably anticipated at the time bids for the project were received. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period... A preliminary request for an extension of contract time shall be made in writing to the Engineer within ten calendar days after commencement of a delay to a controlling item of work or the Contractor shall waive any rights to an extension of the contract time for that delay. In the case of a continuing delay only one request is necessary. Each request for extension of time shall include a description of the dates and cause of the delay, a complete description of the magnitude of the delay, and a list of the controlling items of work affected by the delay. Within 30 days after elimination of the delay, or receipt of a written request from the Engineer, the Contractor shall submit all documentation for the delay and a request of the exact number of days justified to be added to the contract time. If the Contractor claims additional compensation in addition to a time extension, the documentation must also include detailed cost analysis of the claimed extra compensation. Failure to deliver the required notice or documentation within the required period shall constitute an irrevocable waiver of an extension to the contract time for that delay. Failure by the Contractor to provide sufficient documentation, justification, records, etc., to support a request for additional contract time shall be a valid basis for denial of the request by the Department, either in part or entirely. The plans and specifications for the project required the project to be completed within 355 days. The first chargeable day under the contract was January 21, 1988. The resulting completion date would, therefore, have been January 9, 1989. However two supplemental agreements provided additional contract days. The agreements extended the contract time period by 45 days. As a result, the project completion date was March 11, 1989. Up to the date of the hearing Petitioner did not indicate to Respondent that it considered the contract time period with extensions to be inadequate or unreasonable. At the hearing Petitioner indicated such a belief. Additionally, the plans and specifications for the project clearly showed the Department's right of way for the bridge and the Department's construction easements for the bridge. Other than what was shown on the project plans and specifications, the plans and specifications did not provide for any additional right of way or construction easements. The contract incorporated The 1986 Standard Specifications for Road and Bridge Construction. The specifications provide for access as follows: Right of Way Furnished by Department. Except as otherwise stipulated in these Specifications or as may be shown in the plans, all right of way necessary for the proper completion of the work will be furnished by the Department, without cost to the Contractor. The present case clearly falls within the exception in the above language since the plans and specifications disclosed the limits of the right of way and construction easements being supplied by DOT. The burden was therefore on Petitioner to supply any additional easements it felt were necessary to properly complete the project. Prior to bidding the project, Petitioner studied the bid blank, proposed plans and specifications for the project. Additionally, Petitioner viewed the project site and the surrounding area prior to submitting its bid. Petitioner observed that the work area for the project would be "tight" due to the limited right of way and construction easements provided by DOT in the plans and specifications and due to the obstruction of private docks in close proximity to the bridge. However, Petitioner did not protest or otherwise inform DOT of its concerns regarding the work space prior to the award of the bid. Instead, Petitioner elected to gamble on being able to do the job as specified. Likewise, Petitioner observed, prior to bidding the project that water access would be required. Petitioner had noticed that the property adjacent to the southeast corner of the project was for sale. Petitioner also knew that the owner of that property had previously granted DOT a construction easement over part of the property. Based on the above facts, Petitioner assumed that river access could be acquired over the adjacent property and included approximately $15,000 in its bid for acquisition of such water access. Petitioner did not contact the landowner to see if such an arrangement was possible prior to submitting its bid or prior to the award of the bid Petitioner elected to gamble on such access being available. Once the project was awarded to Petitioner on November 16, 1988, Petitioner immediately began its attempts to obtain a water access. After the award of the bid to Petitioner but prior to commencement of the contract, the Jacksonville Electrical Authority (JEA) erected its utility poles on the east side of the bridge. The work was performed out of order. The utility poles' placement was such that the poles partially blocked the right of way and construction easements supplied by DOT and made it impossible to drive pilings at the ends of the bridge. Petitioner complained about the utility poles and their effect to Respondent at the preconstruction conference on December 9, 1987. The poles were eventually removed and the project was officially commenced on January 9, 1988, almost two months after the award of the bid. Petitioner was granted 14 additional contract days for the interference with the pile driving caused by the power poles' premature placement. However, Petitioner did not receive any additional days for the partial blockage of the right of way and construction easements since no delay was caused by that blockage. The partial blockage only interfered with light equipment being delivered to the job site. The poles did not interfere with the delivery of the crane and barge to the job site since the easement was too steep for the heavier equipment to traverse. A separate water access would still be required for the crane and barge to be delivered to the project site. Petitioner had not acquired such an access on January 9, 1988. Petitioner did not begin work on the project until March 2, 1988, some two months after the project period had commenced. Petitioner did not move any heavy equipment onto the project site during this period. Instead, Petitioner continued to seek a water access to the project site which could handle the heavy equipment and barges Petitioner determined it would need to adequately perform the work on the project. The search for access was necessitated by Petitioner's inability to contract for such access with the landowner whose land was immediately adjacent to the project site. The landowner demanded a price of $75,000 for Petitioner's use of its property. The price was grossly out of line with the usual charge for access in the area. DOT refuse to obtain any additional right of way or construction easements. 1/ Petitioner eventually contracted for access to the river with a landowner whose property was located approximately 500 feet east of the project site. The land was such that it required Petitioner to build a road sturdy enough to carry its crane and barge sections. As soon as access was obtained and the road was complete, the equipment was floated down river to the bridge and the project work was immediately begun. Other delays in the performance of the work were experienced by Petitioner due to the location of privately owned docks which extended into the waterway and boat traffic. A portion of one dock had to be removed by Petitioner in order to gain enough room for the barge next to the bridge. The total effect of these problems was to slow work on the project. However, Petitioner was aware of the private docks and the boat traffic from its earlier visit to the project site prior to submitting its bid. Likewise, Petitioner was aware of the limitations of the work space provided by DOT. The evidence did not demonstrate that the work space was inadequate. The project work has been performed in the area provided by DOT. The space, however, is limited. From March, 1988, through the date of the hearing problem associated with the limitations of the work space at the project site prevented work from being timely performed on the project site. However, no evidence was presented by Petitioner that it had ever made a request of DOT for an extension of time due to the limited work space. In fact, the evidence showed that in March and July, 1988, Petitioner believe and so represented to DOT that it could complete the project on time. Additionally, no evidence was presented as to the amount of time incurred by Petitioner attributable to the limited work space. Petitioner, therefore, is not entitled to an award of additional contract days for any delays caused by the limited work space provided by DOT. As of May 4, 1989, the date of the formal hearing in this matter, the project had not been completed by Petitioner. The project completion date had passed on March 11, 1989. Therefore, Petitioner was delinquent under Rule 14- 23, Florida Administrative Code. On March 21, 1989, the Department sent a Communication Terminal Message Sending Blank to Petitioner, indicating that a final notice of delinquency would be issued on the project. On March 27, 1989, Petitioner received the Department's letter informing Petitioner that it was delinquent in the performance of the project work since the time for completion had passed and the project remained uncompleted. By letter dated March 31, 1989, Petitioner advised Respondent that it did not feel that it was delinquent on the project since it had a request for a 120 day extension of time pending before Respondent. No evidence was submitted by Petitioner on the contents of that requested extension. However at the hearing the evidence demonstrated that the request was made based on the untimely move of the power poles 2/ and the initial lack of access to the project site. 3/ Petitioner further requested that if the extension should be denied then it wanted an administrative hearing on whether it was delinquent. Respondent tacitly denied Petitioner's requested 120 day extension and granted Petitioner's request for an administrative hearing. At the hearing Petitioner for the firs time associated the 120 day extension with its claim of inadequate work space at the project site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Petitioner delinquent on the project and suspending Petitioner's Certificate of Qualification for the period defined in Rule 14-23, Florida Administrative Code. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida. DIANE CLEAVINGER 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 June, 1989.
The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a 32-year-old male who seeks to qualify for employment in a position of trust having direct contact with children or developmentally disabled persons served in programs regulated by the Agency. The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. In a letter dated February 20, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that his request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner that this decision was based upon "the serious nature of the offense(s), the lack of sufficient evidence of rehabilitation, and [his] failure to sustain [his] burden of demonstrating by clear and convincing evidence that [he] should not be disqualified." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 120-page report entitled "Exemption Review" dated November 17, 2014. See Resp. Ex. B. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. The Agency decision was triggered after Petitioner applied for a position of special trust on October 24, 2014. To qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening revealed that Petitioner had six disqualifying offenses between 1995 and 2005. Those offenses are listed below: May 17, 1995 -- burglary of a dwelling; Petitioner pled guilty and adjudication was withheld; April 10, 1997 -- robbery; Petitioner pled guilty and adjudication was withheld; May 9, 1997 -- robbery; Petitioner pled guilty, adjudication was withheld, and he was placed on probation; June 17, 1997 -- battery by detainee in a detention facility; Petitioner pled nolo contendere, was adjudicated delinquent, and placed on probation; January 18, 2001 -- possession of cocaine with intent to sell; Petitioner pled nolo contendere, was adjudicated guilty, placed on probation, and ordered to serve 86 days in the County Jail; and February 1, 2005 -- possession of cocaine; Petitioner pled guilty, was adjudicated guilty, placed on probation, and ordered to serve six months in the County Jail. Besides the disqualifying offenses, Petitioner has a number of arrests and/or convictions for non-disqualifying offenses beginning in 1995. Two offenses, disorderly conduct and trespass on a property or conveyance, occurred in July 2012, or seven years after his last disqualifying offense. For that offense, he pled nolo contendere and was adjudicated guilty. He was also ordered to serve one day in the County Jail and required to complete a four-hour anger management class. The Exemption Review shows that in May 2000, Petitioner earned his high school diploma. In June 2009, he earned an associate's degree in Network Administration from the TESST College of Technology in Baltimore, Maryland. In May 2014, he earned a bachelor's degree in psychology from Morgan State University located in the same city. The Exemption Review also shows: from January 2008 through September 2008, Petitioner worked as a cashier and sales consultant at a retail store; from May 2009 through January 2010, he worked as an activities coordinator; from June 2011 through August 2013, he worked as a youth counselor; from February 2014 through May 2014, he worked as a records and registration clerk at the university from which he received his degree; and from June 2014 through August 2014 he worked as a behavior technician. At hearing, he testified that he is currently employed by Quest Diagnostics in the Orlando area. Most of Petitioner's disqualifying offenses occurred at a very early age. For example, in May 1995, while in middle school and just before he turned 12 years of age, he committed his first disqualifying offense, burglary of a dwelling. When he was arrested for his last disqualifying offense in February 2005, possession of cocaine, he was 21 years old. Petitioner attributes his criminal conduct to immaturity, peer pressure, and what he characterized as "environmental exposure." He expressed remorse, he takes full responsibility for his actions, and he acknowledges he could have handled his life better. He is currently in a committed relationship, has a new-born child, and serves as a mentor in the community. In short, Petitioner says he has changed his life for the better. Besides two witnesses who spoke highly of his recent volunteer work with children, an Orlando City Commissioner submitted a letter of recommendation. If his application is approved, Petitioner has a pending job offer with Lodestone Academy in Orlando, which works with Agency clients. An Agency representative testified that the Agency's clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. They often have severe deficits in their abilities to complete self-tasks and communicate their wants and needs. For this reason, the Agency undertakes a heightened scrutiny of individuals seeking an exemption. In explaining the Agency's rationale for denying the application, the Regional Operations Manager listed the following factors that weighed against a favorable disposition of Petitioner's request: the frequency of the criminal offenses; criminal behavior that has consumed one-half of his life; the limited time (three years) since his last arrest, albeit for a non-disqualifying offense; and Petitioner's lack of specificity and accountability in his Exemption Questionnaire and testimony regarding the disqualifying offenses. As to the last factor, Petitioner could recall very few facts regarding his early arrests, saying they occurred at a very young age. He also denied that there were any injuries to his victims. However, one offense involved battery on a detainee in a juvenile facility, and in another, he ripped two gold chains from a victim's neck.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 17th day of June, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 17th day of June, 2015.
Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
Findings Of Fact On December 3, 1991, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: provides maximum penalties for major violations, but fails to designate, or define minor infractions, or provide sufficient guidelines to guide the agency in exercise of its discretion to designate minor infractions as opposed to major infraction listed by the rule. More particularly, the rule provides in part that "any portion of either penalty may be applied." Applying either penalty listed in this rule, which provides for loss of gaintime or disciplinary confinement, is definitionally a major violation. . . . The Petition and the Amended Petition do not included any alleged facts supporting the Petitioner's assertion that the Challenged Rules are "arbitrary and capricious."
The Issue Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 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 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues for determination are whether Respondent violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant and whether Respondent violated the Pinellas County Sheriff's Office rules and regulations; and, if so, whether the proposed penalty is reasonable.
Findings Of Fact Petitioner is a constitutional officer for the State of Florida, who is responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times pertinent to this case, Petitioner employed Respondent as a Detention Deputy. Effective January 31, 1999, Petitioner promoted Respondent from the rank of sergeant to the rank of lieutenant and assigned Respondent to the Corrections Training Section. Respondent reported to Director Herman Vincent. The promotion was subject to a one-year probationary period pursuant to Laws of Florida, Chapter 89-404, Section 4 (3). As a lieutenant, Respondent supervised a number of employees of lesser rank that were responsible for other functions within the Training Section. Among those were Sergeant Wayne Poorman (Poorman), and Detention Deputies Mechelle Sabin (Sabin), Richard Main (Main), David Clarke (Clarke), and David Chant (Chant). In May 1999, Petitioner reassigned Sabin from her position at the Detention and Corrections Bureau to the Corrections Training Section. Sabin had previously applied for the position and was recruited for the position by Respondent. Even before the selection process had begun, Respondent indicated his intention to select Sabin for the position in the Training Section. In June 1999, while at lunch with Sabin, Respondent made unwanted and unsolicited sexual advances to Sabin. Respondent stated that he would "like to get into [Sabin's] pants" and made related statements. Respondent also engaged in other sexually related conversations with Sabin in which Respondent discussed his own sexual practices between himself and his wife and inquired of certain aspects of Sabin's sexual life with her husband. Sabin initially attempted to "laugh off" the statements of Respondent, but he returned to the subject again and again. Sabin ultimately rebuffed his advances. Respondent did not renew his advances, but began to harshly criticize Sabin and to question her work. None of Sabin’s co-workers or her immediate supervisor, Poorman, were similarly critical of Sabin. They found her work to be at least satisfactory and oftentimes superior or excellent. Contrary to Respondent’s characterization of Sabin as "resistant," Sabin's co-workers found her to be eager to help. Respondent could not identify any significant deficiency in Sabin’s job performance. Over time, Sabin grew uncomfortable in the presence of Respondent. Each of Sabin’s co-workers observed the change in the working relationship between Sabin and Respondent. They further observed the apparent discomfort of Sabin while in the presence of Respondent and her reluctance to engage in eye contact with Respondent. On one occasion, Respondent refused to assist Sabin in performing a new task with which she was unfamiliar. The task related to the processing of forms for new recruits. Instead of responding to her requests for guidance in processing the forms or telling her what to do with the forms, Respondent repeatedly stated ". . . think about it, Mechelle, you really need to tell me where this needs to go." Respondent did this in the presence of recruits who Sabin was responsible for processing and training. On other occasions, Respondent chided Sabin for refusing to look him in the eye, and badgered her to a degree beyond what any of her co-workers deemed appropriate and in a manner unlike that demanded of other employees. On one occasion, the badgering escalated to the point that Respondent "got in Sabin’s face" and backed her down a hallway as he spoke to her. Respondent disapproved of a request by Sabin to assist in and attend a meeting regarding a field-training program. Respondent made comments about the sexual orientation of the sergeant with whom Sabin sought to work. On another occasion, Respondent asked Sabin to leave a room ahead of others. Respondent explained to everyone in the room, including Sabin, that ". . . the view was better from behind." In August 1999, Poorman asked Sabin to teach a class for him due to a conflict in Poorman's schedule. Poorman neglected to advise Respondent of the change in assignment. When Respondent looked for Sabin at the office, he was unable to locate her. At a later meeting of the training staff, Respondent complained that Sabin had not made Respondent aware of the schedule changes. When Poorman sought to defend Sabin and advise Respondent that the error was his, Respondent responded by stating, ". . . don’t fucking stick up for her. She has a goddamn mouth. She can speak for herself if she has something to say." The comments were made in the presence of other persons assigned to the Training Section. On another occasion, Sabin agreed to perform a task related to completing forms for recruits to obtain their gym clothes. Respondent refused to provide Sabin with the paperwork she needed to complete the task. When explaining tasks to Sabin, Respondent repeatedly asked in a demeaning manner, "Do you understand what I am saying to you?" Respondent engaged in other behavior toward Sabin in the presence of other employees that was demeaning and disrespectful. Respondent did not engage in similar treatment of other personnel in the Training Section. Respondent contended that Sabin needed to be "toughened up." However, no other supervisor perceived such a need. Sergeant Poorman was Sabin’s immediate supervisor and Respondent’s immediate subordinate and attempted to resolve the conflict without success. After Respondent repeatedly asked Sabin if she wanted to transfer out of the Training Section, Sabin requested reassignment from the Section in an effort to escape the environment. Respondent then sought to enforce a one or two-year commitment to the Training Section that was customary for those transferring into the Section. This occurred during a meeting between Respondent, Sabin, and Poorman. After further discussion, Respondent agreed to allow Sabin to remain in the unit for the remainder of her one-year commitment. However, Respondent later stated to Poorman that Respondent wanted to transfer Sabin back to the jail if Sabin requested reassignment to a position in road patrol. At this point, Sabin told Poorman of the advances made by Respondent and of the conduct that followed. Poorman reported the matter to his supervisor, Director Vincent. Director Vincent contacted the Inspections Bureau, Administrative Inspections Division of the Pinellas County Sheriff’s Office. The Administrative Inspections Division conducted an investigation into the conduct of Respondent. The initial allegations against Respondent included charges that Respondent propositioned Sabin and made other inappropriate comments to her with regard to his sexual life and practices and with regard to her sexual life and practices. Subsequently, and during the course of the investigation, additional allegations were made against Respondent. The subsequent allegations charged that Respondent treated Sabin more harshly than her male counterparts after she rebuffed his advances. The allegations also charged that Respondent made derogatory comments about another female employee, Donna Hughey. Respondent allegedly stated that Hughey had engaged in inappropriate conduct in order to obtain a desired assignment. Petitioner expanded the scope of the investigation conducted by the Administrative Inspections Division to include the new allegations. Representatives of the Administrative Inspections Division notified Respondent of the new allegations prior to his interview. During the course of interviews with other persons assigned to the Training Section, it was revealed that Respondent stated to Sabin that on one occasion a female applying for a position with the Petitioner placed her head in his lap and made reference to what she would do to obtain the position sought. In his statement to Sabin, Respondent did not identify the person who engaged in this conduct, but did describe a female applying for the position in the Training Section. In a similar statement to Poorman, Respondent identified the female applying for the Training Section as Donna Hughey. Respondent cautioned each of these persons against telling anyone else. Hughey denied ever engaging in such conduct and expressed a desire to file a complaint with regard to these allegations made by Respondent. As a result of the investigation, Respondent was provided a Board hearing concerning the charges against him. At the conclusion of the hearing, the Board determined that Respondent violated portions of the Pinellas County Sheriff’s Office Civil Service Act and the Rules and Regulations of the Pinellas County Sheriff’s Office. The Board determined that Respondent committed three violations. First, Respondent violated Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, Subsection 4, provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff by engaging in conduct unbecoming a public servant. Second, Respondent violated Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (a Level Three violation), 060, by bringing discredit to the agency as a result of inappropriate comments to and about other members, i.e., Donna Hughey. Third, Respondent violated Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (a Level Three violation), 069, by failing to treat Sabin with appropriate respect. The Board did not discipline Respondent for the conduct related to unwelcome and unsolicited sexual remarks made to Sabin. The Board found those charges were unsubstantiated by the investigation. The violations resulted in a cumulative point total of 25 points. A 25-point violation authorizes a suspension without pay of up to five days. Respondent had no prior discipline during the course of his employment with Petitioner. The Board imposed disciplinary action of a five-day suspension which is the maximum discipline allowed under Petitioner's rules. The Board based its decision on the nature of Respondent’s conduct, his status as a supervisor, and his rank. The Board also demoted Respondent to the rank of Detention Sergeant and assigned him to the Detention and Corrections Bureau of the Pinellas County Sheriff's Office. During the investigation, the Board extended Respondent’s one-year probationary period in his promoted position of lieutenant for an additional six months until July 31, 2000. Pursuant to Laws of Florida, Chapter 89-404, Section 4 (4), it is within the discretion of Petitioner to extend the probation of a promoted employee for six months beyond the initial one-year probationary term. Respondent remained in the extended probationary rank of lieutenant at the time of his Board hearing and at the time of the imposition of discipline by Petitioner. The nature of the conduct engaged in by Respondent, particularly as it related to his actions and methods as a supervisor, warranted a five-day suspension without pay and the loss of Respondent's promotion. Respondent engaged in a method of supervision designed less to train and guide and more to intimidate and control. Since Respondent’s demotion and reassignment from the Training Section, the Section again operates as a team without the level of agitation seen during Respondent’s tenure as supervisor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff’s Office enter a Final Order finding Respondent guilty of the conduct alleged in the charging document, suspending Respondent for five days without pay from his employment as a Detention Deputy with the Pinellas County Sheriff’s Office, and demoting Respondent from his probationary rank of lieutenant to the rank of sergeant. DONE AND ORDERED this 26th day of June, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2000. COPIES FURNISHED: B. Norris Rickey, Esquire Assistant County Attorney 315 Court Street Clearwater, Florida 33756 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler, et al. 1669 Mahan Center Boulevard Tallahassee, Florida 32308 Thomas E. Reynolds, Esquire Law Offices of Edward D. Foreman, P.A. 100 Second Avenue, North, Suite 300 Clearwater, Florida 33762 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on January 7, 2010, the Amended Order of Penalty Assessment issued on February 17, 2010, and the 2°4 Amended Order of Penalty Assessment issued on May 5, 2010, attached as “Exhibit A,” “Exhibit B,” and “Exhibit D” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from DON KRAUSS, D/B/A DON KRAUSS PAINTING, the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On January 7, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-006-1A to DON KRAUSS, D/B/A DON KRAUSS PAINTING. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein DON KRAUSS, D/B/A DON KRAUSS PAINTING was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On January 8, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on DON KRAUSS, D/B/A DON KRAUSS PAINTING. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 17, 2010, the Department issued an Amended Order of Penalty Assessment to DON KRAUSS, D/B/A DON KRAUSS PAINTING. The Amended Order of Penalty Assessment assessed a total penalty of $19,871.50 against DON KRAUSS, D/B/A DON KRAUSS PAINTING. The Amended Order of Penalty Assessment included a Notice of Rights wherein DON KRAUSS, D/B/A DON KRAUSS PAINTING was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On February 22, 2010, the Amended Order of Penalty Assessment was served by personal service on DON KRAUSS, D/B/A DON KRAUSS PAINTING. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 8, 2010, DON KRAUSS, D/B/A DON KRAUSS PAINTING filed a request for administrative hearing with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on March 29, 2010, and the matter was assigned DOAH Case No. 10-1682. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On April 14, 2010, the Department served its First Interlocking Discovery Request (“discovery requests”) on Respondent by overnight courier, to which Respondent was required to serve its answers upon the Department within 30 days of service, pursuant to Rules 1.340(a), 1.350(b), and 1.370(a), Florida Rules of Civil Procedure. The Discovery request included requests for admissions, interrogatories, and requests for production. 7. On May 5, 2010, the Department issued a 2"! Amended Order of Penalty Assessment to DON KRAUSS, D/B/A DON KRAUSS PAINTING. The 2" Amended Order of _ Penalty Assessment assessed a total penalty of $16,282.94 against DON KRAUSS, D/B/A DON KRAUSS PAINTING. 8. On May 7, 2010, the Department filed a Motion to Amend Order of Penalty Assessment with the Division of Administrative Hearings. On May 10, 2010, the Administrative Law Judge entered an Order granting the Motion to Amend Order of Penalty Assessment and accepting the 2™4 Amended Order of Penalty Assessment as part of the Department’s charging documents. The 2" Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 9. On May 17, 2010, the Department filed a Motion to Compel Discovery after having not received any answer from Respondent to the Department’s discovery requests. 10. On May 17, 2010, the Administrative Law Judge issued an Order Granting the Department’s Motion to Compel Discovery, ordering Respondent to serve responses to all of the Department’s discovery requests on or before June 4, 2010. | ll. On June 9, 2010, the Department filed a Motion to Deem Matters Admitted and Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes after having not received any answer from Respondent to the Department’s discovery requests. 12. On June 22, 2010, the Administrative Law Judge issued an Order to Show Cause, requiring the Respondent to show cause in writing no later than July 2, 2010, why the case should not be closed and jurisdiction relinquished to the Department. 13. DON KRAUSS, D/B/A DON KRAUSS PAINTING failed to file a written response to the Order to Show Cause with the Department of Administrative Hearings on or before July 2, 2010. On July 6, 2010, the Administrative Law Judge issued an Order Closing File, relinquishing jurisdiction of the matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E” and incorporated herein by reference.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services 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 The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.
