The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since November 29, 2001, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 2000056. Javeres Kendrick and Willie Kendrick are Respondent's brothers. Respondent has lived in the same residence as her brother Javeres her entire life. Since February of 1999, when they were placed on probation for committing the felony crime of lewd and lascivious assault on a child under 16 years of age, Javeres Kendrick and Willie Kendrick have been under the supervision of the Florida Department of Corrections (DOC). On or about November 27, 2000, Respondent completed and submitted to the Department of Corrections (DOC) a Correctional Officer/Correctional Probation Officer Supplemental Application. At the time, she did not have any training or experience as correctional or probation officer. Question 4 on this employment application asked: Do you have a business or personal relationship with anyone presently incarcerated or under the supervision of the Florida Department of Correction's system? If yes, give name, relationship, and place of incarceration/supervision. Respondent answered this question by checking "No." In doing so, she believed that she was providing accurate information to DOC. Although she was aware that her brothers were on probation, she did not understand them to be "incarcerated or under the supervision of the Florida Department of Correction's system," within the meaning of the question, because they were not in state prison. Furthermore, in her mind, she had a familial, not a "business or personal relationship" with her brothers.3 Respondent was ultimately employed by DOC as a correctional officer and assigned to Broward Correctional Institution (BCI). On September 18, 2003, a team of DOC correctional probation officers (Team), consisting of Raul Fernandez, Sara Bermudez, and Juan D'Elia, accompanied by local law enforcement officers, including David Torres of the Miami-Dade County Police Department, went to the residence of Javeres Kendrick at 4270 Northwest 197th Street, Miami, Florida, to conduct a "pre- planned sex offender compliance check." The purpose of the Team's visit was to ascertain whether Mr. Kendrick was in compliance with the terms and conditions of his probation. When the Team arrived at the residence, Mr. Kendrick was outside washing a vehicle. The Team members exited their vehicles and walked up to Mr. Kendrick. They identified themselves as correctional probation officers and told Mr. Kendrick that they were there to make sure that he was in compliance with the terms and conditions of his probation. To do so, they advised him, they needed to search his bedroom (which they were authorized to do by the court order placing Mr. Kendrick on probation). Mr. Kendrick responded that his bedroom was "a mess" and that he wanted "to go and clean [it] up" before the Team conducted its search. Despite being told that he "couldn't do that," Mr. Kendrick "bolted" away from the Team members and went "inside the house." Officers Fernandez and D'Elia followed Mr. Kendrick to the front door of the residence, where they were met by Respondent, who "intercepted" them and blocked their paths, thereby "prohibit[ing] [them] from entering [the residence] immediately." While standing in their way and interrupting their pursuit of Mr. Kendrick, Respondent, using profanity, yelled at Officers Fernandez and D'Elia in a "hostile and belligerent" manner, expressing her strong displeasure over their presence at the residence. She told them that they "had no right to be there," adding that "every time [they] show[ed] up there [they] always w[ound] up arresting her brother."4 Respondent was asked at least twice to "please move," which she finally did, albeit "in a very slow and deliberate manner." Officer Fernandez instructed Respondent to "take the children out of the residence and to wait outside until [the Team] conducted [its] search." With Respondent out of the way, Officer Fernandez and D'Elia entered the residence. Officer D'Elia spotted Mr. Kendrick "in the second bedroom on the left." Mr. Kendrick had his hand in a chest drawer. While Officer D'Elia "secured" Mr. Kendrick, Officer Fernandez searched the drawer and found "paraphernalia used for the pack[ag]ing of narcotics" and baggies containing what appeared to be cocaine and marijuana. After this discovery was made, Respondent came into the bedroom (contrary to the instructions she had been given) and asked "how much longer [the Team] had left." A conversation between Officer Fernandez and Respondent ensued, during which Officer Fernandez informed Respondent about "the narcotics that were in the drawer." Upon being so informed, Respondent, with the intent to deceive the Team, falsely claimed that the bedroom in which the "narcotics" had been found was not her bother Javeres' bedroom. Rather, she told Officer Fernandez and the other Team members, the bedroom had last been occupied by her uncle, who "had wound up going to jail." As the Team was leading him away from the residence, Mr. Kendrick asked Respondent to "retrieve" for him from "his room" a pair of pants, socks, and tennis shoes that he could wear in jail. Complying with this request, Respondent, followed by Officer Bermudez, went straight to the bedroom in which the "narcotics" had been found (which was Mr. Kendrick's bedroom, contrary to what Respondent had previously claimed) and "retrieve[d]" the items her brother had requested. During her dealings with the Team that day, Respondent revealed that she was a correctional officer at BCI. Upon returning to his office, after having "finished processing Mr. Kendrick and logging in the evidence" seized from Mr. Kendrick's bedroom, Officer Fernandez complained to his supervisor about Respondent's hostile and obstructive conduct during the Team's "compliance check" at Mr. Kendrick's residence earlier that day. Inasmuch as Respondent was a DOC employee, Officer Fernandez's supervisor referred the matter for an internal affairs investigation pursuant to DOC policy. Scott Thomas, a senior prison inspector with DOC, conducted the investigation. As part of his investigation, Inspector Thomas reviewed the contents of Respondent's DOC personnel file (including the employment application she had submitted on November 27, 2000) and obtained sworn affidavits from Officers Fernandez, Bermudez, and D'Elia. In addition, on November 12, 2003, he interviewed Respondent under oath. During the interview, among other things, Respondent repeated the falsehood that the bedroom in which the "narcotics" had been found during the September 18, 2003, "compliance check" was not her brother Javeres' bedroom. In addition, she falsely denied ever having used "profanity towards the [Team] members" conducting the "compliance check" and further falsely denied that that the Team members, during the September 18, 2003, "compliance check," ever told her to "wait outside the house." Respondent made these statements to Inspector Thomas knowing that they were not true. Inspector Thomas determined from his investigation that Respondent had "provided untruthful information" on her November 27, 2000, employment application and that she had engaged in "conduct unbecoming" a DOC employee during the September 18, 2003, "compliance check" at her residence. Based on the findings of Inspector Thomas' investigation, Respondent's employment with DOC was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of Allegation Two and Three and, based on these findings of guilt, revoke her certification. DONE AND ENTERED this 21st day of June, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 21st day of June, 2004.
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 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
The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes. On or about January 24, 1997, Mr. Dempsey submitted to the Commission an application for licensure as a real estate salesperson. Mr. Dempsey answered "yes" to Question No. 9 on the application, which asks in pertinent part: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" He attached the details to his application. Mr. Dempsey answered "yes" to Question No. 10(a) on the application, which asks in pertinent part: "Has any judgment or decree of a court been entered against you in this or any other state, . . . in which you were charged . . . with any fraudulent or dishonest dealing?" Mr. Dempsey attached the details of a 1988 conviction for mail fraud to his application. On December 12, 1983, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, revoked Mr. Dempsey's probation and sentenced him to two years imprisonment based on his plea of guilty to three counts each of uttering a forged instrument and of second degree grand theft, one count of forgery, and one count of failure to redeliver a hired motor vehicle. On July 9, 1986, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, sentenced Mr. Dempsey to three and one-half years imprisonment based on his plea of guilty to one count of robbery, one count of aggravated battery, one count of possession of cocaine, two counts of forgery, two counts of uttering a forged instrument, and two counts of second degree grand theft. On or about May 31, 1989, Judge Roettger of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to three years confinement based on a guilty plea to one count of mail fraud. The court withheld imposing a sentence of confinement on Mr. Dempsey for another count of the indictment, and sentenced him to five years probation, to run concurrently with the sentence of confinement. On December 21, 1990, Judge Moreno of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to fifteen months' imprisonment based on his plea of guilty to one count of escape. The sentence of imprisonment was suspended, and Mr. Dempsey was placed on a three-year term of supervised release. On January 29, 1992, Mr. Dempsey appeared in the Dade County Court and pled not guilty to one count of soliciting for prostitution. He was found guilty and sentenced to attend an AIDS course and to have an AIDS test. On May 27, 1992, Judge Moreno of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's supervised release and sentenced him to one-year imprisonment for violation of the terms of his supervised release. On July 9, 1995, Judge Roettger of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's probation and sentenced him to imprisonment for five years for violation of the conditions of his probation. On January 14, 1997, Mr. Dempsey was paroled by the United States Parole Commission and released from the Marianna Federal Correctional Institution. His parole expires May 14, 2000. Since January 23, 1997, Mr. Dempsey has been employed by Westgate Resorts, a timeshare resort in Miami, Florida. In July 1997, he was promoted to manager. Since he was found guilty in 1988 of mail fraud, Mr. Dempsey's only criminal conviction was for the misdemeanor of soliciting for prostitution. His other offenses were violations of the terms of his supervised release on the charge of escape and of his probation on the charge of mail fraud. The evidence presented in this case is not sufficient to establish that Mr. Dempsey, at this time, is of good character and trustworthiness and has a reputation for fair dealing. The uncontroverted evidence establishes that Mr. Dempsey has been convicted of crimes involving forgery, grand theft, and mail fraud.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Lloyd Robert Dempsey for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Lloyd Robert Dempsey, pro se 5577 La Gorce Drive Miami Beach, Florida 33140-2137 Andrea D. Perkins Assistant Attorney General Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The parties to this proceeding were afforded due and proper notice according to law of the final hearing. Petitioner was granted a Mandatory Conditional Release (hereinafter MCR) from a Florida state prison on October 31, 1975. He would have been Supervised in the same manner as a person released on parole until the expiration of his sentence on March 7, 1978. On October 8, 1976, the Petitioner received a directed verdict of acquittal from the Honorable Judge Allen R. Schwartz in Case No. 76-6250, State of Florida v. Walter Thomas, in the Eleventh Judicial Circuit Court in and for Dade County, wherein the Petitioner was charged with the crime of sexual battery against a female in violation of Section 794.011, Florida Statutes. The Respondent Subsequently charged Petitioner with the violation of Condition 8 of his MCR Certificate " . . . by failing to live and remain at liberty without violating the law, in that on or about July 6, 1976, in Dade County, Florida, [he] did unlawfully participate in the involuntarily sexual battery of . . ." a named female. Pursuant to Petitioner's request, Respondent held what it terms a "majority" final revocation hearing on February 4, 1977, with Commissioners Maurice G. Crockett, Ray E. Howard, Annabelle P. Mitchell and Charles J. Scriven present. The Respondent revoked Petitioner's MCR in an Order dated February 10, 1977, signed by Commissioners Roy W. Russell, Ray E. Howard, Maurice G. Crockett and Armond R. Cross. On April 7, 1977, the Commission issued an Amended Order correcting a clerical omission in its original order. Although Respondent had the discretion to grant credit for the time Petitioner spent on MCR no such credit was granted. On July 1, 1977, Petitioner was again released on her to remain thereon until the expiration of his sentence. Since he had not received credit for the time previously spent on NCR his current sentence expiration date has been extended from March 7, 1978 to "November 11, 1978. Section 947.23(1), Florida Statutes, states that: "As soon as Practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee shall appear before the commission [Respondent] in person . . . and a hearing shall be had in which the state and the parolee may introduce such evidence as they may deem necessary and Pertinent to the charge of parole violation." The same section further provides that after the foregoing hearing the Commission shall make findings upon such charge of parole violation and shall enter an order determining whether the charges have been sustained and by that order shall revoke the parole or reinstate the original order of parole or enter such other order as the Commission may deem proper. The evidence in this case establishes that the Respondent has an established procedure and practice by which it implements the foregoing statutory requirement. Rule 23-16.09(3), F.A.C., entitled "Hearings; Revocation of Parole" sets forth, in part, this Procedure and Practice. It does not, however, set forth the complete procedure and Practice. It provides that a parolee can elect to appear either before a majority of the Commission or one Commissioner. Rule 23-16.09(3), F.A.C. Apparently following that Provision Respondent conducts two types of final parole revocation hearings. The great majority of these are referred to as "single member hearings" wherein the alleged violator agrees to have a single member of the Respondent Commission conduct the final hearing. The remainder are referred to as "majority member hearings" where a hearing panel of four members of the Commission conduct the final hearing. The manner in which the foregoing types of hearings are conducted by Respondent and a final order entered pursuant thereto has, by the Practice of the agency, become quite formalized and definite but has not been codified in the Florida Administrative Code. The procedure and practice of Respondent in the conduct of single member parole revocation hearings is well established and inflexible. The single member hearings are held every Friday with one member of the Commission present and conducting the hearing. The Commissioner receives the waiver of the alleged violator to a majority hearing and resolves the question of the alleged violator's right to counsel. The charges are then read, witnesses sworn and permitted to testify, evidence taken and the alleged violator permitted to admit or deny the charges and to testify. The single Commissioner takes notes and fills out a brief one page form which in part contains his recommendation and eight lines for the alleged violator's Statement, mitigating circumstances and witness statements. This form along with all evidence presented at the hearing is placed in the alleged violator's file which is then returned to Tallahassee, Florida, for further action. As soon as possible upon arriving in Tallahassee, usually within the next five (5) working days, the case is placed on the voting panel docket. The Commission maintains a duty roster which requires four members of the Commission to meet in the regularly scheduled voting panel meeting, normally held on Thursday of each week, to review those cases docketed for that panel. This duty roster for the voting panel is compiled without regard to which Commissioner conducted the hearings which are to come before the voting panel. Each Commissioner on the voting panel has had access and opportunity to review individually all information, evidence, recommendations and other matters in the file on the alleged violator and to review the record of the hearing. The evidence, however, establishes that it is rare indeed for any of the members of the voting panel to have read the record of the hearing on which they vote. The evidence further establishes that the Commission has no requirement that those members of the voting panel who did not hear the case read the record. Although a tape recording or court reporter's notes are made of the parole revocation hearing they are seldom transcribed and almost never read by the Commissioners sitting on the voting panel. Usually, the Commissioner who conducted the single member hearing is present at the meeting of the voting panel which is to consider that case. It is further the practice of the agency for that Commissioner who held the hearing to then tell the voting panel the facts as he knew them in addition to the information on the form referred to above. The alleged violator nor his counsel is allowed to appear at the voting panel's meetings. In practice, the members of the voting panel do not read the record of the hearing below nor do they read the entire file made available for their perusal. That file may contain matters not presented in evidence at the parole revocation hearing. After consideration of the file and record as they see fit and having heard the remarks of the Commissioner who conducted the hearing, and engaged in such discussion as they deem appropriate, the voting panel votes on the disposition of the case before it. It is the position of Respondent in considering parole revocations that Section 947.06, Florida Statutes, requires four (4) Commissioners voting together to restore or revoke the alleged violator's mandatory conditional release or to discharge the matter. Therefore, should a split vote occur at the voting panel meeting the Commissioner who held the hearing must then attempt to seek a majority vote from other members of the Commission on whether to restore, revoke or discharge. A typical situation would find four of the seven Commissioners sitting on the voting panel, a fifth Commissioner having conducted the single member hearing, and two remaining Commissioners, who were neither at the parole revocation hearing nor the meeting of the voting panel. If the voting panel is not unanimous in its disposition of the hearing these remaining Commissioners are then lobbied by the Commissioner who held the hearing and perhaps some or all of the Commissioners who sat on the voting panel, to cast their vote in order that there may be four votes together on whether to revoke restore, or discharge. These two members are not required by the practice of the Respondent to read the record of the parole revocation hearing or review the file of Respondent on the alleged violator and, in fact, do not generally read the full record or review the entire file. A majority member parole revocation final hearing is the same as a single member final hearing with the exceptions noted below. Instead of a single member of the Commission being present and conducting the hearing, four members of the Commission are detailed to hold the majority hearings which are held on the first Friday of each month. The four sit and listen to the testimony and evidence, taking notes and filling out a face sheet similar to that form used in a single member hearing. Immediately following the hearing the four members discuss the case and frequently a tentative vote is taken and recorded informally on the face sheet which is then included in the file and returned with the record of the hearing to Tallahassee. Cases which have been heard by four members of the Commission are placed on a voting panel docket just as are cases heard by a single member of the Commission. The voting panel members are rarely, if ever, the same four members of the Commission who attended and held the final revocation hearings, although some members of the voting panel will have sat on the hearing panel. As in a single member hearing coming before the voting panel, the panel discusses and reviews each case on the docket with the file readily available to each member of the Commission at the voting panel meeting. However, just as in the case of the single member hearing reviewed by the voting panel, the members of the voting panel are not required to read the record of the final hearing or fully review the file made available to them on the alleged violator and generally have not done so. Following a review and discussion of the docketed cases a vote is taken by the voting panel. The Respondent takes the position that, pursuant to Section 947.06, Florida Statutes, there must be four votes in agreement to restore, revoke or discharge. Should a split vote occur in the voting panel the remaining three Commissioners are approached by members of the voting panel and their vote recorded to revoke, restore or discharge. This vote is not generally done at a regularly scheduled meeting of any sort and these Commissioners are not required to and generally have not read the record nor fully reviewed the file in the matter. Once four members of the Commission are in agreement to revoke, restore, or discharge, the staff is directed to prepare a final order which order informs the violator of the charges alleged, the decision of the Commission, a brief summary of the evidence relied upon and the effective date of said action. The order further contains the signatures of the members of the Commission who took the action. It is the announced practice of Respondent that when the Commissioners consider and determine whether the alleged violator is guilty of the charges they do not consider information outside the record of the final revocation hearing, although the agency file, which is generally not introduced at the hearing, is available to the Commissioners. However, it is also the announced practice of the Respondent that after determination by the Commission that the alleged violator is guilty of the charges, but before the entry of any final order, the Commissioners will consider matters outside the record of the final revocation hearing. The Respondent does not give the alleged violator or his counsel notice of this evidence or an opportunity to respond to it. This evidence is considered by the Commission after a determination of guilt for the purpose of deciding whether to restore MCR even though the violator was guilty of the charges, to simply revoke, or to grant credit for time on MCR even though it is revoked. The testimony of the Commissioners appearing in this proceeding establish that those Commissioners voting on these revocation matters who were not present at the final hearing get to know the facts presented at the hearing Primarily by word of mouth from the Commissioner or Commissioners who were present at the final hearing. It further establishes that the Commissioners who vote on these revocation matters and who were not present at the final hearing do not generally, though in some cases they may, review all of the evidence presented at the final revocation hearing. Respondent Presently brings revocation charges against a conditional releasee who has been tried for a criminal offense while on conditional release. Further, even though the conditional releasee is found innocent by reason of a directed verdict of acquittal, or a jury verdict of not guilty, or a verdict of not guilty in a non-jury trial, Respondent charges and may revoke said conditional release on the same or similar facts and matters raised at the criminal proceeding if Respondent finds that the terms and conditions of the releasee's MCR were violated. Petitioner has attempted to prove that it is the rule of Respondent to issue final orders affecting substantial interests which do not include findings of fact and conclusions of law separately stated. The evidence presented establishes that, although there may be genuine disagreement on whether a certain final order affecting substantial interests contain proper findings of fact and conclusions of law, nevertheless, it is the policy of the agency to include such findings and conclusions in its final orders. Respondent argues that it has formally promulgated as rules Chapters 23-16 and 23-17, Florida Administrative Code, which chapters establish the practices and procedures utilized by Respondent in the granting and revocation of conditional releases. Further, Respondent points out that Rule 23-16.09, Florida Administrative Code, entitled "Hearings; Revocation of Parole" is the formally promulgated rule dealing with parole revocation hearings. The evidence establishes that the practices and procedure set forth in paragraphs 3, 4, 5, 7 and 8 above are not formally codified by the Respondent and have not been promulgated in accordance with Chapter 120, Florida Statutes. The evidence further establishes that these practiced and procedures apply, without exception, to all final parole revocation hearings and are the practices and procedures used by the Respondent to implement its statutory responsibilities under Chapter 947, Florida Statutes, and specifically Section 947.23, Florida Statutes. These practices and procedures have been in effect for several years and, although not formally codified, the Commissioners, by their testimony and responses to discovery, have stated these practices and procedures to be those of the agency applicable to all final revocation hearings.
Findings Of Fact Standing. The Petitioner, Roger Smith, is an inmate in the custody of the Department of Corrections. The Petitioner is subject to the rules of the Respondent, the Florida Parole Commission, including the Challenged Rule. The Petitioner is serving a "parole eligible sentence." The Petitioner's eligibility for parole has been determined by the Respondent. The Petitioner was convicted of the offense of escape and, therefore, the Respondent applied the Challenged Rule to the Petitioner. The Respondent. Sections 947.07 and 947.13, Florida Statutes, authorize the Respondent to adopt rules governing the parole of inmates in the State of Florida. Among other things, Section 947.13, Florida Statutes, authorizes the Respondent to determine who is placed on parole and to fix the time and conditions of parole. Pursuant to Sections 947.07 and 947.13, Florida Statutes, the Respondent promulgated the Challenged Rules. Rule 23-21.018(1) and (7), Florida Administrative Code. Rule 23-21.018(1) and (7), Florida Administrative Code, provides the following: Vacation of presumptive or effective parole release date: The exiting of an inmate from the incarceration portion of his sentence, which shall include but not be limited to bond, escape, parole or MCR release, expiration of sentence, or transfer to a mental health facility, shall vacate any established presumptive parole release date. Any subsequent return to incarcerations will require an initial interview to establish a presumptive parole release date. Provided, however, inmates returning to court for modification of a previously imposed sentence or as witnesses shall not have their presumptive parole release dates vacated. Inmates returning to courts outside of Florida's jurisdiction, i.e, Federal or other state, shall not have their presumptive parole release dates vacated. However, information resulting from disposition of cases in court may be used as new information in accordance with applicable law and these rules. Inmates transferred to a Mentally Disordered Sexual Offender Program shall not have their presumptive parole release dates vacated. . . . . Conviction for crimes committed while incarcerated: Escape or any other crime committed during incarceration with an ensuing conviction and sentence vacates any previously established presumptive parole release date and shall cause the inmate to be considered a new admission. If the inmate is found to be eligible for consideration for parole, the Commission shall aggregate.
Findings Of Fact Petitioner is an inmate incarcerated at Tomoka Correctional Institution, Daytona Beach, Florida. He is presently serving a sentence of 60 years and has a presumptive parole release date of 180 months. Petitioner specifically challenges the validity of the matrix time range contained in Rule 23-21.09(5), Florida Administrative Code. That provision contains a matrix which sets the time ranges for presumptive parole release dates. A copy of that matrix is attached to this order as Appendix I. The most current matrix was last amended effective October 1, 1982. The initial or first matrix was developed and became effective in 1979 in response to legislation adopted in 1978 which required the Parole and Probation Commission (hereafter referred to as Commission) to develop and implement objective parole guidelines. Prior to this time, the granting or denying of parole had been a subjective decision by the commissioners and required a majority vote of the commissioners. In originally developing the matrix, the Commission used the Thurston Scaling Method in ranking various criminal offenses from least to most serious offense. This method involved providing each of the Commissioners with 40 index cards on which the various criminal offenses were written. Each commissioner then ranked the various criminal offenses in order of seriousness. The Board then reviewed the results and arrived at a consensus on the ranking of the various crimes. The Thurston scaling methodology is an accepted scientific methodology for ranking different crimes by level of seriousness or severity. This methodology was recommended to the Commission by three consultants in the field of parole. These same three experts, Peter Hoffman, Director of Research for the U.S. Parole Commission, Dale Parent, Director of the Sentencing Guidelines Commission for the State of Minnesota, and Betty Taylor, a parole commissioner for the State of Oregon, advised and consulted with the board in developing the objective parole guidelines. After the initial matrix was adopted as a Commission rule, it was reviewed on an annual basis as required by statute. Since 1979, some changes in the matrix have been adopted by the Commission based upon their annual review. Each change was adopted as a rule change and the procedures for adopting or amending administrative rules were followed. The procedure for adopting the rule changes generally took at least 90 days. The present matrix contains six categories of crimes broken down by degrees. Each inmate is assigned a salient-factor score and by using this score with the offense for which the person was sentenced a time range for the Presumptive parole release date for that individual is obtained from the matrix. The Commission sets the presumptive parole release date within that range unless other factors warrant going outside that range by extending or reducing the number of months to the presumptive parole release date. The inmate's presumptive parole release date may also be extended for unsatisfactory institutional behavior while incarcerated. The Commission, in granting or denying parole, considers the total case package including those specific reasons which may serve as a basis for going above or below the matrix time range. When the Commission goes outside the matrix time range it must state its reason for doing so. Prior to March 1983, the forms of the Commission's actions were filed in a central storage area. In March 1983, the mechanism became available for feeding this information into the computer. Using the computer and data which is maintained by the Department of Corrections, the Commission now generates quarterly reports. These reports provide a statistical analysis which indicates whether the guidelines are being following by the Commission. This same data also provides a possible indicator for needed changes in the guidelines. All revisions to the guidelines must now be made based upon such statistical analysis. Sentencing guidelines and objective parole guidelines are separate. The salient-factor scores for the sentencing guidelines and objective parole guidelines are similar, but not the same. Sentencing involves a separate branch of government, a separate function, separate measurements, and separate criteria. Sentencing can be done only by a court of law and is accomplished by court order. Sentencing sets the limit of the incarceration period. The parole function is a function of the executive branch and cannot be ordered by the Commission. An offer of parole is tendered or offered by the Commission and the inmate may accept or reject the offer and its condition. If the inmate accepts an offer of parole, the form used is a contract form which must be signed and agreed to by the inmate. Parole results in release under supervision whereas completion of the sentence results in full release without conditions or supervision. Section 947.165(2), Florida Statutes, was amended by the 1982 legislature. See Session Law 82-171. Prior to this amendment, changes made in the objective parole guidelines were to be based upon the "experience" of the commission. The amended section provides that the Commission shall review the guidelines at least once each year and make any revisions considered necessary by virtue of statistical analysis of Commission actions. The initial report of the data generated by this statistical analysis was to be due January 30, 1983. See Florida Statute 947.13(3)(1982). The Commission and its staff began work immediately after the passage of 82-171 to implement the statistical analysis and reporting requirements.
The Issue Whether Petitioner is entitled to receive an exemption from disqualification to work in positions of special trust.
Findings Of Fact In November 1999, Petitioner was employed by Angels Unaware, Inc., as a caretaker of children or the developmentally disabled. Such a position is a position of trust. By letter dated November 29, 1999, Angels Unaware, Inc., notified Petitioner that it had received information that was disqualifying and, thus, he was ineligible for continued employment as a caretaker of children, disabled adults, or elderly persons. However, in the letter, Petitioner was advised of his right to seek an exemption from disqualification from the licensing agency. Thereafter, Petitioner requested an exemption from disqualification. At all times, pertinent to this proceeding, Respondent was the state agency responsible for receiving and approving or denying applications for exemptions from disqualification to work in a position of trust. After receiving Petitioner's request for exemption, Respondent conducted the required background screening of Petitioner. The background screening revealed that Petitioner had been arrested and convicted of possession and delivery of cocaine. As a result of Petitioner's conviction, Respondent denied Petitioner's request for exemption. According to the background screening report, Petitioner was convicted of possession and delivery of cocaine on April 2, 1996. The incident that resulted in the conviction occurred on or about January 20, 1995, the day Petitioner was arrested. Following his arrest, Petitioner was charged with possession and delivery of cocaine. On May 1, 1995, Petitioner pled guilty to the aforementioned felony. That same day, the court withheld adjudication and placed Petitioner on probation for one year. Pursuant to condition 7 of Petitioner's probation, he was not to use or possess any drugs or narcotics unless prescribed by a physician. Notwithstanding this proscription, on or about September 24, 1995, November 14, 1995, and March 3, 1996, Petitioner violated this condition by using cocaine as evidenced by positive urinalysis and his own admission. As a result of Petitioner's repeated use of cocaine, on April 2, 1996, Petitioner was convicted of violating his probation and was adjudged guilty of possession and delivery of cocaine, the charges for which adjudication had been initially withheld on May 1, 1995. Moreover, Petitioner's one-year probation was revoked and he was placed on drug offender probation for two years. One of the special conditions of the drug offender probation was that Petitioner receive drug treatment until he successfully completed such program. On or about May 15, 1997, Petitioner again used and possessed cocaine in violation of the Order of Drug Offender Probation. Following this violation, on July 17, 1997, the court entered an Order of Modification of Probation. Pursuant to that Order, Petitioner's probation continued under the previous terms and conditions but Petitioner's cost for supervision was waived while he was receiving in-patient drug treatment. Petitioner entered a six-month in-patient drug treatment program in June 1997 and successfully completed the program on December 22, 1997. The court terminated Petitioner's probation on April 1, 1998. At the hearing, Petitioner acknowledged that his using cocaine was a "mistake" and stated that he has been drug-free since June 1997, when he began the six-month drug treatment program. However, Petitioner presented no other witnesses or evidence of his rehabilitation during the two years since his probation was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order denying Petitioner's application for an exemption from his disqualification from employment in positions of trust or responsibility. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 July, 2000. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services 4000 West Dr. Martin Luther King, Jr. Boulevard, Room 500 Tampa, Florida 33614 Nwezi A. Nonyelu 6545 Spanish Moss Circle Tampa, Florida 33625 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, Esquire Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary D. Latham (Latham), began serving as a member of the Florida Parole Commission (Parole Commission) on July 24, 1992. At the time of the final hearing, he was continuing to serve as a parole commissioner. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an administrative secretary to the general counsel's office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be referred to in this recommended order as Ms. Billingslea. Effective May 27, 1994, Ms. Billingslea was promoted to the position of executive secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of senior executive secretary to the chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as Latham's executive secretary since Latham had previously interviewed Ms. Billingslea for an executive secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed with Chairman Wolson and her administrative assistant, Gene Strickland, the possibility of transferring Ms. Billingslea to Latham's open position. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a commissioner's office because the work in the chairman's office was more administrative than the work in a commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billinglea was reassigned to the position of executive secretary to Latham. Because there is only one position of senior executive secretary at the Parole Commission (the chairman's secretary), this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Latham's executive secretary, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billinsglea understood that the chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will be almost as if he's going to say something but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At this time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. When the Parole Commission denies parole, a report referred to as a 947.18 report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner, and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham was assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told her that she had done nothing to make him approach her in this way but that he did not know what had come over him lately; he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she would not be working for him but that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later that same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair and preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited nor encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billinsglea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill, to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She tried to call the office to advise that she would be late, but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal. After Ms. Billingslea spurned his advances, he began to voice his dissatisfaction with her work hours. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could make which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems, and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland, and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billinglea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office, and after Ms. Billingslea left, he asked to speak with Chairman Wolson. Latham wanted to know what was going, on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching it up with a victory signal and saying, "Yes." He left Chairman Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him, but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was transferred to the position of executive secretary in Clemency. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Gary D. Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed, as well as a public censure and reprimand. DONE AND ENTERED this 8th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Virlindia Doss, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1997. Tallahassee, Florida 32399-1050 Gary D. Latham, pro se 4622 The Oaks Drive Marianna, Florida 32446 Mark Herron, Esquire Akerman, Senterfit & Eidson, P.A. 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301-0503 Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman, Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
