Findings Of Fact At all times material hereto Petitioner, Ernest Walker, was an inmate incarcerated at Union Correctional Institution. Respondent is a state agency charged by law with determining what persons may be placed on parole, fixing the timing conditions of parole, and determining violations of parole. Respondent is charged by Section 947.16, Florida Statutes, with the responsibllity of interviewing inmates, and establishing presumptive parole release dates, and thereafter reviewing those dates. Pursuant to its statutory charge, Respondent conducted an interview of Petitioner, Ernest Walker, and established his original presumptive parole release date to be June 21, 1988, by action certified by Respondent on September 2, 1981. Subsequently, in special Commission action taken on October 17, 1983, Petitioner's PPRD was extended to June 21, 2008, based upon the receipt of a mental health status report, which, according to the record in this cause, was treated as "new information" not available at the time the Petitioner's initial PPRD was established.
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. Vision Builders One, Inc., is a service provider for the Agency. Mr. Gaskin applied with Vision Builders One, Inc., to become a caregiver, 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 significant history of involvement with law enforcement for Mr. Gaskin.2/ In response to inquiries concerning possession of cocaine on December 2, 1988, Mr. Gaskin stated: I was young, not thinking straight, and decided to experiment with selling illegal drugs. I was arrested in a known location for having three cocaine rocks. I was placed on probation. On February 8, 1989, Mr. Gaskin entered a plea of nolo contendere to possession of a controlled substance, cocaine, a felony of the third degree. In response to inquiries concerning violation of probation on May 31, 1990, Mr. Gaskin stated: I didn’t want to result back to selling illegal drugs. I was unable to find employment; therefore, I didn’t have money to pay my probation fees. I violated and was sentenced to 18 months in prison. In response to inquiries concerning resisting an officer without violence on April 9, 1993, Mr. Gaskin stated: I do not recall this arrest or charge. Once researched, the clerk was unable to locate court documents for this charge. In response to inquiries concerning contempt of court regarding child support on November 15, 1993, Mr. Gaskin stated: I was unemployed and unable to pay the child support purge. In response to inquiries concerning possession of cocaine on February 15, 1994, Mr. Gaskin stated: I was hanging out with a few guys, and one of them left cocaine in the backseat of my car, unknowingly to me. This charge against me was dropped. In response to inquiries concerning cocaine possession on February 5, 1995, Mr. Gaskin stated: I was parked in my car and had cocaine in my possession when the law officers approached my car. I received one year house arrest probation, six months weekend jail, and 75 hours of community service work, in addition to court fines and suspended driver license. On June 19, 1995, Mr. Gaskin entered a plea of nolo contendere to possession of a controlled substance, cocaine, a felony of the third degree. In response to inquiries concerning a domestic battery on July 20, 2000, Mr. Gaskin stated: My wife and I were separated. I stayed away for four weeks and when I returned to our home, my wife had a male friend in the house. I was upset and she wouldn’t let me in our home, so I knocked the door in to enter. When entering, she and I exchanged hurtful words and we struck each other. She called police and I was arrested. Those charges were downsized to lesser charges. I was sentenced to one year probation, attend and complete an anger management class. On January 31, 2001, Mr. Gaskin entered a plea of nolo contendere to trespass of an occupied dwelling, a misdemeanor of the first degree and to domestic battery, a misdemeanor of the first degree. In response to inquiries concerning contempt of court for violation of a protective injunction regarding domestic violence on September 3, 2000, Mr. Gaskin stated: My bondsman neglected to notify me of my court date; therefore, I didn’t appear on day of court. When informed of the contempt of court, I turned myself in, so no arrest record. The bondsman notified the court of negligence and the contempt of court charges were dropped. In response to inquiries concerning failure to appear on March 1, 2002, Mr. Gaskin stated: I do not recall this arrest or charge. I will be following up on researching to receive clarification that this was actually me. Once the research is completed I will provide a detailed statement. In response to inquiries concerning violation of probation for trespassing in an occupied dwelling March 1, 2002, Mr. Gaskin stated: I was violated because my wife made an untrue statement to the police that I was harassing her. I called to ask for visitation with my son and we got into a verbal argument. In response to inquiries concerning driving while license suspended on July 24, 2010, Mr. Gaskin stated: I got a traffic ticket leaving work which violated my probation. I notified my probation officer and turned myself in, so there wasn’t an arrest. My probation was re-instated; I then paid it off and completed it to its entirety. Since September 10, 2002, Mr. Gaskin has been released from all confinement, supervision, and non-monetary sanctions imposed for the disqualifying offenses he committed. Since April 14, 2016, Mr. Gaskin has been released from all monetary conditions. Mr. Gerry Driscoll is the regional operations manager for the Southeast Region in the Agency. He has served in his current position for 3 years and has been employed with the Agency for 17 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 instance of violence very carefully. While in his written submission to the Agency Mr. Gaskin stated that he never caused any harm or injury to any victim, at hearing he admitted that he caused injury to his wife when he hit her after breaking into their home and injury to others in selling them controlled substances, testimony that is credited. Mr. Gaskin submitted three character reference letters to the Agency stating generally that he is hardworking, intelligent, and committed. Mr. Gaskin further stated that he was very remorseful and admitted he had made poor choices in his life in the past. He explained that he just wants an opportunity to be a productive citizen, to work, and to take care of his family. Mr. Gaskin seems sincere in his desire to care for vulnerable persons, and asks for a chance to work with them to demonstrate that he is rehabilitated. However, the statute requires that rehabilitation be shown first through other work history and by additional means: only then may an exemption to disqualification be granted. While Mr. Gaskin stated that he is rehabilitated, he offered little evidence to clearly demonstrate that. He completed some courses toward certification as a firefighter in 2004-2005, but has evidently not pursued that further. He completed some courses required as a condition of probation, but has not participated in other counseling or coursework. Mr. Gaskin’s work history in the past decade, a very important element in demonstrating rehabilitation, has been very “sketchy,” as Mr. Driscoll testified. Mr. Gaskin indicated that his last employment ended in July 2014. He was employed by Manpower Staffing Services doing temporary work for about 14 months in several jobs such as maintenance worker, demolition worker, and equipment/maintenance technician. He also worked at United Parcel Service for a couple of months in 2010. Although Mr. Gaskin has not had steady work in recent years, he noted that when needed, he assists his father-in-law with handyman work, his son with his entertainment business, his cousin with his bail bonds business, and his nephew with his marketing business. He noted that he also assists at his church. Passage of time is a factor to be considered in determining rehabilitation, and the last disqualifying offense was many years ago. However, Mr. Gaskin’s history since his disqualifying offenses continues to reflect minor incidents and does not contain sufficient positive indications of rehabilitation. Petitioner failed to prove by clear and convincing evidence that he is rehabilitated and that he will not present a danger if he is exempted from his 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 Mr. Dwayne Gaskin’s application for exemption from disqualification. DONE AND ENTERED this 21st day of September, 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 21st day of September, 2016.
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character, in violation of Section 943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional probation officer on February 1, 1991, and as a criminal justice training instructor on December 7, 1999. Her respective certificate numbers are 20851 and 205697. Respondent was first employed by the Department of Corrections (DOC) on August 10, 1990. She was employed as a correctional probation officer. As a result of promotions, Respondent became a DOC Correctional Probation Specialist in February 1995, so that she was responsible for, among other things, various administrative duties, such as handling citizens' complaints of employee misconduct and coordinating training events. In April 2001, Respondent filed a charge with the Equal Employment Opportunity Commission, alleging that DOC forced her to work in a hostile environment. On February 15, 2002, Respondent, alleging the same facts, commenced a legal action against DOC in the United States District Court, Southern District of Florida, Case No. 02-60236-CIV. As part of the federal litigation, DOC filed a motion for summary judgment, arguing, in part, that Respondent's complaint failed to claim damages. In response, on March 28, 2003, Respondent, representing herself, filed a lengthy affidavit, to which she personally attested. In the affidavit, Respondent swore to the following statement: I requested assistance from management [following the departure of the other Correctional Probation Specialist from Respondent's office and DOC's failure to fill the empty position], but they refused to assign another Specialist to the office to assist me. As a result I had to work an average of five hours per week extra in overtime without pay to properly supervise this caseload to prevent from being reprimanded, suspended or terminated by [DOC]. I was not paid for this time. The evidence is clear that Respondent did not work overtime, with or without pay. The Correctional Probation Supervisor who directly supervised Respondent at the time testified at the hearing. Obviously not hostile to Respondent, the supervisor testified definitively that during the relevant period in the affidavit--March 2, 2001 through May 9, 2002--she was intimately familiar with Respondent's work, including her itinerary and travel logs. The supervisor testified that Respondent incurred no overtime whatsoever during this period, and this testimony is credited in its entirety. Respondent's sworn statement in the affidavit is false and was false at the time that Respondent made it. Respondent's sole purpose in making this false statement was to deceive the court and show an element of damages that did not, in fact, exist. DOC terminated Respondent on August 1, 2003. She has not since worked in a job that requires certification from Petitioner.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificates as a correctional probation officer and criminal justice training instructor for one year retroactive to August 2, 2003; placing these certificates on probation for two years from the date of the final order; and requiring Respondent to attend an ethics course approved by Petitioner. DONE AND ENTERED this 18th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2006. COPIES FURNISHED: Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Faye E. Wright-Simpson
Findings Of Fact Ernest Brown is a registered real estate salesman holding a registration issued by the Florida Real Estate Commission. Brown received notice of the instant hearing as required by the statutes and rules. His probation officer testified she had contacted him and he had advised her that he would not attend the proceedings. Brown was placed on probation with an adjudication of guilt withheld by the Circuit Court of Pinellas County, Florida, on January 25, 1989 (see Exhibit 2). Paragraph 10 of the conditions of probation requires that Brown serve 180 days in the Pinellas County Jail on weekends from 7:00 p.m. Friday until 7:00 p.m. Sunday. Because of the appeal of his case, Brown did not begin serving this jail term until August 24, 1989. He has served 72 of the 180 days according to the records of his probation officer. Brown is currently in the custody of the State's probation department.
Recommendation The Board's counsel advised the Hearing Officer after hearing that Respondent had surrender his license. This constitutes an ex parte communication of which notice is hereby given to all parties. This fact is immaterial to consideration of the matter at hand. The Board has long taken the position, quite correctly, that surrendering of a license did not impair jurisdiction to consider violations of its statutes by a licensee while licensed. Similarly, surrender of a license cannot terminate the Hearing Officer's consideration of the matter after hearing. The instant case was duly heard and the Recommended Order prepared prior to receipt of any pleadings relative to surrender by Brown of his license. At this point, the Board may accept surrender of the license and dismiss the Administrative Complaint, in which case Brown would be considered not to have had any disciplinary action against him, or the Board may enter its final order based upon the record and this Recommended Order. Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the license of Ernest Brown. DONE and ORDERED this 23rd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. Ernest B. Brown 2027 Thirteenth Street, South St. Petersburg, Florida 33172
Findings Of Fact The Petitioner is an inmate incarcerated at the Florida State Prison in Starke, Florida. In accordance with plea arrangements, Petitioner was convicted of numerous charges of robbery, burglary, sexual battery, and false imprisonment in Circuit Courts in Dade and Broward Counties, Florida. He received numerous and various prison sentences, all of which were to run concurrently with a 99- year sentence. Assuming that Petitioner is eligible for statutory gain time for good behavior, his sentence would expire sometime prior to the year 2080. During July, 1981, Petitioner was interviewed by an examiner of the Florida Parole and Probation Commission for the purpose of establishing a presumptive parole release date (PPRD). Under Parole and Probation Commission rules then in effect, the examiner was to consider the severity of the offense committed by the Petitioner, calculate a "salient factor score" and apply various aggravating or mitigating circumstances in determining a recommended PPRD. The examiner classified the offense as "greatest (most serious III);" determined a salient factor score of nine based upon prior convictions, total time served, the existence of burglary as a present offense of conviction, the number of prior incarcerations, and the Petitioner's age of first commitment; and applied numerous aggravating circumstances based upon the nature of various of the charges that had been lodged against Petitioner. The examiner recommended a PPRD of March 4, 2092. On August 26, 1981, the Parole and Probation Commission considered the examiner's recommendation and affirmed it. Petitioner is now pursuing a review of the PPRD before the Commission. In promulgating the rules which were in effect when Petitioner'S PPRD was determined, the Parole and Probation Commission sought to isolate factors that would predict the probability of a successful parole outcome. There is no perfect predictive device on a case-by-case basis. An inmate's past behavior and statistical relationships that can be isolated provide the best predictive devices. The Commission's C utilization of a system which first classifies the offense characteristics, then applies a salient factor score and aggravating or mitigating circumstances is designed to set a presumptive parole release date based on an inmate's past behavior and based upon the statistical relationships that have been found to exist. The evidence does not establish that the guidelines adopted by the Commission in its rules which were applied to the Petitioner are arbitrary, capricious or unreasonable. The Parole and Probation Commission has amended the rules which were followed in the setting of the Petitioner's PPRD. The Petitioner continues to be affected, however, by the rules as they existed prior to the amendments because those rules provide the basis for his PPRD.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The licensee At all times material hereto, Respondent, Jill Sousa Barker, was licensed by Petitioner, Department of Insurance (Department), as a general lines agent. Such licensure dates to May 10, 1993, and, but for the pending action, Respondent has suffered no other complaint or disciplinary action. The violations On February 11, 1997, an Information was filed in the Circuit Court, Twentieth Judicial Circuit, Lee County, Florida, Case No. 97-0058CF, charging Respondent with two counts of trafficking in cocaine (28 grams or more), contrary to Section 893.135(1)(b), Florida Statutes, and one count of sale or delivery of cocaine, contrary to Section 893.13(1)(a), Florida Statutes. Specifically, the Information alleged that: Count 1 [Respondent] did unlawfully and knowingly sell, manufacture, or deliver a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about November 7, 1996 Count 2 [Respondent] did unlawfully and knowingly have in her actual or constructive possession, a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about January 8, 1997 Count 3 [Respondent] did unlawfully sell or deliver a controlled substance, to-wit: cocaine, on or about December 18, 1996 The offenses alleged in Counts 1 and 2 constituted the commission of a felony of the first degree, and the offense alleged in Count 3 constituted the commission of a felony of the second degree. On September 3, 1997, Respondent entered a plea of nolo contendere to Count 3, as charged, and a plea of nolo contendere to the lesser included offense (Counts 1 and 2) of sale and delivery of cocaine (contrary to Section 893.13(1)(a), Florida Statutes), a second degree felony.1 The court entered an order withholding adjudication of guilt on each count, placed Respondent on probation for a period of four years under the supervision of the Department of Corrections (with early termination after two years if in compliance with all terms and conditions imposed), and assessed a fine and costs totaling $561. Respondent successfully completed her probation within one year, and was granted early termination by the court on June 15, 1998. At no time did Respondent inform the Department in writing of having pled nolo contendere to the aforesaid felonies.2 Aggravating and mitigating factors Here, the seriousness of Respondent's criminal acts cannot be gainsaid, nor may they be casually dismissed (as counsel suggests in Respondent's Proposed Recommended Order at page 2) as "part of a sting operation and as such . . . a 'victimless' act." Rather, Respondent acted as a middleman on three occasions, purchased cocaine (up to one ounce) for a dealer (a "person involved in the regular purchase and sale of . . . cocaine") who she believed was otherwise unable to acquire the product, and for which service she was paid a fee ($300 to $500 for the one ounce transaction). That the cocaine was not sold or further distributed, since the dealer was (unbeknownst to Respondent) operating under cover as an informant for the police department, does not render the crime less offensive. Notwithstanding, Respondent has suffered and paid a criminal penalty for her conduct and has demonstrated, based on objective evidence of right conduct, that she is truly remorseful for her actions and that she is worthy of holding a position of trust and confidence. Consequently, although suspension may be mandatory for a violation of Subsection 626.611(14), Florida Statutes, as discussed infra, it will serve no useful purpose. Therefore, any suspension should be de minimus. In reaching the foregoing conclusion, it is observed that, while serious, the isolated events which gave rise to the criminal charges filed against Respondent do not fairly reflect her character. Rather, history reveals that Respondent, age 34 at the time of hearing (date of birth September 17, 1964), has been gainfully employed (at various times, in various capacities) in the insurance industry since age 18, and that she suffered a brief, abusive marriage in the late 1980s, which resulted in the birth of a son, Trent. When Trent was 10 months of age, Respondent left her abusive husband, and moved (from Miami, Florida) to North Carolina to reside with her sister. There, Respondent successfully gained licensure as a property and casualty agent, as well as a life and health agent, and was employed by State Farm. Respondent was then, and continues to be, the primary support for herself and her son, and she enjoys little or no assistance from her former husband. Respondent remained in North Carolina approximately two years, and then returned to Miami, Florida, where she was employed by the Simons and Rose Insurance Agency. Following Hurricane Andrew (August 24, 1992), and the loss of all her possessions, she moved to Fort Meyers, Florida, to reside with her brother. There, Respondent successfully completed the 240-hour course and examination to qualify for licensure in Florida, and on May 10, 1993, was licensed as a general lines agent. Following licensure, Respondent was employed by AAA Insurance for two and one-half years, and thereafter by Tim Shaw Insurance Group, Inc. Respondent was, and continues to be, a model employee, a heavy producer, and is highly regarded among those who know of her. Apart from her continued employment, and support and participation in her son's activities (school, karate, hockey, baseball, and Cub Scouts), Respondent has, since the incidents in question, also committed to regular attendance at Lighthouse Baptist Church. There she has also taught vacation bible school, and has sat as a member of the building committee, as well as the finance committee. Moreover, Respondent has continued to attend night school at Edison Community College, and expects to receive an associate degree (A.S.) in computer programming on December 10, 1999. In all, Respondent has evidenced admirable traits, including resilience, tenacity, and character, which should not be overlooked or ignored because of the isolated incident in question. Given those traits, as well as her evident remorse, there is no reason to believe Respondent would engage in any further misconduct. Moreover, Respondent is painfully aware that, absent licensure, she would lose the means to support her family, and would most likely lose her home and the opportunity to complete her college program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds the Respondent guilty of violating the provisions of Subsections 626.611(14) and 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating the provisions of Subsection 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. All charges that Respondent's conduct also violated the provisions of Subsections 626.611(1), (7), or (13), and 626.621(2), Florida Statutes, should be dismissed. It is further RECOMMENDED that, as a penalty for such violations, Respondent's license be suspended for one day, followed by a one-year term of probation. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1999.
Findings Of Fact Petitioners and Respondent have stipulated to the following facts: Petitioners Piccirillo and Adams have PPRD's established under the Objective Parole Guidelines Act to be September 30, 1986 and November 11, 1991 respectively. Respondent has not conducted effective parole release date interviews for Petitioners Piccirillo and Adams or otherwise reviewed their PPRD's for the purpose of establishing their effective parole release dates. Petitioners Piccirillo and Adams are entitled to receive effective parole release date interviews in the future prior to the time their presumptive parole release dates arrive. Additional findings of fact are as follows: The three Petitioners were all inmates at Union Correctional Institution, Raiford, Florida in the custody of the Department of Corrections at the time of final hearing. Petitioner Fasenmyer's established PPRD of April 19, 1982 was extended by Respondent by 60 months pursuant to statutory authority contained in Section 947.18, Florida Statutes, by an order entered May 10, 1982. This action was taken at an effective parole release review of Petitioner Fasenmyer's case and followed his effective parole release date interview. Respondent's order rendered May 10, 1982 recited the Commission's reasons for refusing to authorize Petitioner Fasenmyer's EPRD and for extending his PPRD 60 months to April 13, 1987. Petitioner Fasenmyer sought appellate review of the commission's order in the First District Court of Appeal and that court, on its own accord, relinquished temporary jurisdiction to the commission to conduct another review of his case for purposes of adequately explaining the reasons for denial of appellant's parole and to report its findings, pursuant to such review, to the court. On remand, the full commission entered an order on July 5, 1983 pursuant to procedures identical to and now incorporated in the challenged rules refusing to authorize Petitioner Fasenmyer's EPPD, reinstating his PPRD of April 19, 1982, and scheduling him for further consideration in December, 1983.
Findings Of Fact Rule 23-21.03(9)(b) , Florida Administrative Code, the rule under challenge, contains a list of forms to be used by the Commission in parole grant-and-rescind types of proceedings. The particular form which is challenged is PCG-4.4, entitled "Special Commission Action." The Commission on September 7, 1983, extended petitioner's presumptive parole release date (PPRD) by utilizing form PCG-4.4. Petitioner and the Commission agree that invalidation of the challenged rule will not affect petitioner's PPRD. Petitioner does not challenge the method by which Rule 23-21.03(9)(b) , Florida Administrative Code, was promulgated.
Findings Of Fact The Respondent, Florida Parole and Probation Commission, adopted revised rules of practice and procedure which became effective on September 10, 1981. Among these is Rule 23-21.09, Florida Administrative Code, which establishes "matrix time ranges" that are used in determining presumptive parole release dates for persons who are serving prison terms. In determining presumptive parole release dates, the Respondent's rules require that a "salient factor score" be determined based upon such factors as the number of prior criminal convictions, the number of prior incarcerations, total time served in prisons, the inmate's age at the time of the offense which led to the first incarceration, the number of probation or parole revocations, the number of prior escape convictions, and whether burglary or breaking and entering is the present offense of conviction. The degree or severity of the present offense of conviction is then determined. The Respondent's Rule 23-21.09 sets guidelines for time ranges for presumptive parole release dates depending upon the severity of the present offense of conviction and the salient factor score. The more severe the present offense of conviction, the longer will be the period before the presumptive parole release date. Similarly, given the severity of the offense, the higher the salient factor score the longer will be the period before the presumptive parole release date. The rule replaced a rule which set different matrix time ranges. The new rule generally sets longer time ranges, but this is not uniformly true. The Petitioner, Seimore Keith, is an inmate presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a facility maintained by the Florida Department of Corrections. Petitioner Keith was convicted of grand theft in July, 1980, and was sentenced to serve five years in prison. The conviction was the result of a guilty plea which was entered in accordance with a plea bargain. During plea negotiations, Petitioner Keith was advised that his presumptive parole release date under Florida Parole and Probation Commission rules would require that he serve no more than 25 months in prison. At the time that Petitioner Keith's presumptive parole release date was set by the Respondent, the new Rule 23-21.09 had come into effect, and the Petitioner's presumptive parole release date was set to require that he serve 32 months in prison. The Petitioner, Ronnie McKane, is presently incarcerated at Polk Correctional Institution. He was convicted of the offense of armed robbery in February, 1981. Under rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Petitioner McKane's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by Respondent in setting McKane's presumptive parole release date. The Petitioner, Daniel P. Hull, is presently incarcerated at Polk Correctional Institution. He was convicted in September, 1971, of the offense of robbery and sentenced to serve ten years in prison. He was paroled in 1974, but was reincarcerated as a result of a parole violation in 1976. In 1977 he escaped, and was recaptured in January, 1981. On June 1, 1961, Petitioner Hull was convicted of the offense of escape and sentenced to serve nine months. Under the rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Hull's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rules were applied by Respondent in setting Hull's presumptive parole release date, and it has been set subsequent to the expiration of his sentence. Hull will therefore be released when his sentence expires in March, 1982. The Petitioner, Douglas L. Adams, was convicted of the offenses of possession of marijuana and uttering a forged instrument, and sentenced in February, 1981, to two consecutive five-year sentences. Under the rules in effect when Adams was sentenced, which was prior to the adoption of Rule 23- 21.09, Adams' presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by the Respondent in setting Adams' presumptive parole release date. During 1980, the Respondent directed its staff to begin considering proposed changes to its rules of practice and procedure. Various proposals were considered, and by September, 1980, a proposed rule package had been developed. The Respondent directed its staff to submit the proposed rule package to the Governor and members of the Cabinet, various pertinent legislators, county and circuit judges, prosecutors and public defenders, superintendents of each prison in the State, and to members of the Supreme Court and the district courts. The Commission opted to conduct various workshops throughout the State, and to invite all interested persons to share their input. Notices of the workshops were published in the Florida Administrative Weekly. The workshops were conducted, and the Commission commenced formal rule-making proceedings. Notice of rulemaking was published in the Florida Administrative Weekly, and hearings were scheduled. Notice of the formal rulemaking proceedings was also published in the St. Petersburg Times, the Pensacola Journal, the Tallahassee Democrat, the Orlando Sentinel-Star, and the Florida Times-Union. Persons who had requested specific notification were provided it. In response to this notice, the Respondent received considerable written input, and oral presentations were made at hearings that were conducted. The final hearing in the rule-making proceeding was conducted on June 19, 1981, and the rules, including Rule 23- 21.09, were thereafter adopted effective September 10, 1981. Notice of the proposed rule changes and of the formal rulemaking proceeding was not specifically disseminated to inmates at Florida's prisons. The proposed rules were for- warded to the superintendent of each facility. At some of the institutions the proposed rules were apparently posted. All persons who requested copies of the proposed rules from the Florida Parole and Probation Commission were provided them. Numerous prisoners and organizations that represent prisoners made input during the various states of the rulemaking proceeding. None of the Petitioners in this matter were specifically noticed of the rulemaking proceeding. One of the Petitioners had heard that rules were being proposed, and requested copies of them from members of the Legislature or from Department of Corrections personnel. None of the Petitioners requested copies of the proposed rules from the Respondent or anyone connected with the Respondent.
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
