The Issue The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.
Findings Of Fact Petitioner issued Respondent license number 288-7 on February 15, 1988, for the operation of a child-care facility at 261-B S. Central Avenue in Oviedo, Florida. The license was amended on October 3, 1988. On November 15, 1988, Larry D. Lowe, a Human Services Program Analyst employed by Petitioner, conducted an inspection of the subject facility. At the conclusion of the inspection, he prepared a checklist noting deficiencies as to background screening. Specifically, Mr. Lowe noted that the fingerprint cards and abuse-registry forms had not been completed for an employee named Cindy Samons and that these omissions were in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code. Mr. Lowe gave Ms. Samons a copy of the checklist, which gave Respondent until November 22, 1988, to submit the required forms. Mr. Lowe returned to the subject facility on December 28, 1988, and discovered that the forms had been completed and placed in the employee's file, but they had never been submitted to Petitioner. Thus, Petitioner had never had the chance to conduct the necessary background screening on Ms. Samons, who was at the time the sole employee at the facility. Mr. Lowe recommended an administrative fine of $360 based upon a daily fine of $10 for the 36-day period between the initial corrective due date and the date of the follow-up inspection. On October 11, 1988, Ms. Marilyn Willming, R.N., who is a public health nurse with the Seminole County Public Health Unit, performed a medical inspection of the subject facility and discovered that, among other things, no employee on the premises had obtained a current first-aid certificate and that this omission was in violation of Rule 10M-12.004(1), Florida Administrative Code. Ms. Willming gave one of the employees a copy of the medical inspection checklist, which gave Respondent until October 25, 1988, to correct this problem. Flora Kavitch, R.N., who is also an employee of the Seminole County Public Health Unit, conducted a reinspection of the facility on December 23, 1988, and discovered, among other things, that the facility still had no employee with a current first-aid certificate. She recommended an administrative fine of $780 based upon a daily fine of $10 for the 78-day period between the date of the initial inspection and the date of the follow-up inspection. Each of the above-described deficiencies is a condition or occurrence related to the operation and maintenance of a facility and indirectly or potentially threatens the physical or emotional health, safety, or security of the children.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1140. ENTERED this 1st day of August, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 1st day of August, 1989. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 911 Orlando, Florida 32801 Hilton J. Soto 6501 Palmetto Drive Winter Park, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Hilton J. Soto Little Theresa Child Care 261-B South Central Avenue Oviedo, Florida 32765 =================================================================
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2016).1/
Findings Of Fact Based on the evidence presented at hearing, the following findings of fact are made: The Agency is the state entity which supports vulnerable persons with various developmental disabilities. The Agency contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. The ARC of Martin County, Inc. (the ARC), is a service provider for the Agency. Ms. Ford applied with the ARC to become an after-school counselor, a position of trust which requires completion of level 2 background screening. The Department of Children and Families conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a history of involvement with law enforcement, as Ms. Ford admitted in her exemption request paperwork and her testimony at hearing, summarized below. On September 30, 2011, Ms. Ford entered a plea of guilty to forgery, driving on a suspended license, and providing a false name to law enforcement, for events that took place on April 9, 2010. Forgery, a felony of the third degree, is a disqualifying offense for employment in a position of trust. She was ordered to pay court fees and costs, and was put on probation for a period of 18 months for that offense. In her responses in the Exemption Questionnaire, Ms. Ford gave few details as to the events surrounding the disqualifying offense itself. She stated only that she was a witness to an accident on March 20, 2011, almost a year after the forgery incident, and, after identifying herself to the police, was arrested on an outstanding warrant from Martin County for the forgery charge. Ms. Ford wrote in her own words:2/ The forgery was do to traffic when I was pulled over and I gave my sister name to the officer. The officer then allowed me to go to go. I didn't know I had a warrant for Martin County until the night of the crash. In response to inquiries concerning another arrest for driving with a suspended license and providing a false name to a law enforcement officer while being arrested or detained a couple of months later on May 9, 2011, Ms. Ford wrote: I was on my to work and I was running late so I then was doing over milage and I was pulled over and gave officer a other name, cause I didn't want to be late for work. At hearing, in response to inquiries concerning her arrest for shoplifting on January 22, 2013, Ms. Ford acknowledged shoplifting a medical device for her daughter from Wal-Mart. Ms. Ford completed all confinement, supervision, and nonmonetary conditions imposed by the court for her disqualifying offense by March 29, 2013. Mr. Gerry Driscoll is the regional operations manager for the Southeast Region of the Agency. He has served in his current position for three years and has been employed with the Agency for seventeen years. Mr. Driscoll credibly testified that the Agency has responsibility for a very vulnerable population, many of whom are unable to later tell others about the actions of their caregivers. This population is thus very susceptible to exploitation. Mr. Driscoll noted that the Agency must consider any prior criminal conduct or dishonesty very carefully. In her written submission to the Agency, Ms. Ford did not recognize that she caused any harm or injury to any victim. However, at hearing, she admitted that she caused injury to her sister when she provided and signed her sister's name to law enforcement after being detained or arrested on more than one occasion. Ms. Ford submitted three identically worded "form" character reference letters to the Agency, stating generally that she is a responsible, reliable, and honest person. The letters do not indicate the employment status or positions of the individuals signing the references. Ms. Ford further stated that she was remorseful. In her Exemption Questionnaire, Ms. Ford wrote: Yes my remorse is I accepting made bad choose in my life and I accept full responsibility for the actions that I made. I want to move forward and put the pass behind me so I can make a better future for me and my kids. Ms. Ford seems sincere in her desire to assist vulnerable persons and asks for a chance to work with them to demonstrate that she is rehabilitated. However, the statute requires that rehabilitation be shown first; only then may an exemption for disqualification be granted. While Ms. Ford stated that she is rehabilitated, she offered little evidence to clearly demonstrate that. She completed a home health aide course in 2012, but has not participated in other counseling or coursework since the disqualifying offense. Ms. Ford's recent work history includes employment as an administrative assistant with Florida Community Health Centers, Inc., from October 8, 2014, to October 5, 2015, and employment as a mental health technician with Sandy Pines Residential Treatment Center from July 18, 2008, to January 7, 2014. Passage of time is a factor to be considered in determining rehabilitation, and the last disqualifying offense was over five years ago. However, Ms. Ford's history since her disqualifying offense includes more to reflect incidents and does not contain sufficient positive indications of rehabilitation. Ms. Ford failed to prove by clear and convincing evidence that she is rehabilitated and that she will not present a danger if she is exempted from her disqualification from employment in a position of trust.
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 Ms. Jennifer Ford's application for exemption from disqualification. DONE AND ENTERED this 11th day of October, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of October, 2016.
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 1, 2011, and the Amended Order of Penalty Assessment issued on April 19, 2011, which are 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 Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including 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 April 1, 2011, 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. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC 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 Section 120.569 and 120.57, Florida Statutes. 2. On April 1, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 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 April 19, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $12,985.36 against LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 4. On April 29, 2011, the Amended Order of Penalty Assessment was. personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC failed to answer the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
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.
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
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, 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 rule at issue in this proceeding. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. 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. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
