The Issue The issue is whether Respondent, a law enforcement officer, is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a certified law enforcement officer, holding certificate number 92165. At all material times, the DeSoto County Sheriff’s Office employed Respondent until Respondent resigned shortly after giving the statement described below. In June 1995, a female narcotics informant alleged that she had traded sex for money with Respondent. The DeSoto County Sheriff’s Office commenced an investigation. According to the female informant, who did not testify in this case, there were no witnesses to the alleged incidents. After interviewing the female informant, the DeSoto County Sheriff’s Office or the female informant filed a criminal complaint with the State Attorney’s Office. On July 18, 1995, the State Attorney’s Office filed a memorandum declining to prosecute Respondent because the “[o]nly evidence is the word of an admitted prostitute and drug-user. Under these circumstances, [we] cannot prove the allegations beyond a reasonable doubt.” After receiving a copy of this memorandum, the DeSoto County Sheriff's Office scheduled an interview of Respondent concerning the allegations of the female informant. A lieutenant who had not previously conducted an internal affairs investigation assumed responsibility for conducting the interview. The lieutenant contacted Respondent on the afternoon of July 18, told him that he was conducting an internal affairs investigation, and directed him to give an interview the following afternoon. The lieutenant, who had a superior rank over Respondent, did not inform Respondent of the nature of the investigation or of the identity of the complainant. The interview of Respondent took place on July 19, 1995, starting at 1:00 p.m. In addition to Respondent and the lieutenant, a major and captain of the DeSoto County Sheriff’s Office were present, as was a sergeant, who was present at the request of Respondent as an additional witness, but not an advisor. The lieutenant had a package of information at the start of the interview, but did not give it to Respondent until after the interview was completed. The package included a Notification of Charges/Allegations, stating that from January 1991 through June 1995 Respondent allegedly engaged the named female informant in prostitution at least ten times at Respondent’s residence. The form advised that, if sustained, these allegations constituted conduct unbecoming a deputy. The package also included an Admonition Form. This form, which is prepared by the DeSoto County Sheriff's Office, states that “prior to questioning an accused member . . ., [any member of the DeSoto County Sheriff's Office shall] present the following admonition to said accused . . . for the member to read.” The Admonition states in its entirety: I wish to advise you that you are being questioned as part of an official investigation of the DeSoto County Sheriff's Office. You will be asked questions specifically directed and narrowly related to the performance of your official duties and/or your continued fitness for office. You are entitled to all the rights and privileges guaranteed by the laws and Constitution of the State and the Constitution of the United States, including the right not to be compelled to incriminate yourself. I further wish to advise you that if you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to departmental charges which, if sustained, could result in your dismissal from the DeSoto County Sheriff's Office. If you answer questions, as required, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding. However, these statements may be used against you in relation to subsequent department charges. The lieutenant commenced the interview by stating that the purpose of the interview was an allegation of some misconduct and then reading the Admonition. After reading the Admonition, the lieutenant asked Respondent if he understood the Admonition, and Respondent replied that he did. Without letting Respondent read the Admonition, the lieutenant then asked Respondent about the allegation that he had engaged in sex for money at least ten times with the named female informant. Respondent admitted to a single incident of sexual intercourse four or five years ago, without any mention of any payment, but denied any other sexual relations. He explained that he had given her some money for information and for personal matters--as Respondent had known her socially for over 20 years and each was a friend of the other’s family. At the conclusion of his questions, the lieutenant asked the major if he had any questions. The major asked if Respondent would take a polygraph test and if Respondent knew that the female informant had taken and passed one. The major asked a few more questions, largely repeating the questions asked by the lieutenant. After the major was finished, the lieutenant asked Respondent to sign the Notification and Admonition forms. He then asked Respondent to raise his right hand and swear that the statement that he had given was the ”truth, so help you God.” After obtaining an affirmative answer from Respondent, the lieutenant proceeded to go over some of the forms when Respondent interrupted him, saying: Wait, wait, wait, wait. I . . . I . . . I . . . I can’t do this here. I won’t be able to live with myself. There was more than one time. I . . . I . . . I just can’t do this now. I’m not going to lie. It was more than one time. I’ll take the polygraph. Um . . . I think it was like . . . four times. I . . . I . . . I just can’t do that. The lieutenant asked Respondent if he had exchanged money for sex, and Respondent answered in the affirmative. He said that on two occasions he gave her about $15 or $20 and the rest of the time the money was for information. Respondent said that the sex acts took place only when he was off-duty and out of uniform. The lieutenant asked, “I guess you realize that that’s considered prostitution, right?” Respondent answered, “Yeh. That’s about it.” The interview continued, although no material information emerged. Respondent apologized for lying the first time during the interview and stated: “Jap [Respondent]. You sitting here lying to these people. You done worked for these people for eight years. You ain’t never lied to them. So why are you going to sit here and lie? . . . I just couldn’t walk out of here knowing that I had told you a lie.” Respondent also mentioned that a mutual acquaintance of his and the female informant had told him of the allegations and that Respondent had told his attorney the truth. Respondent's statements do not detail the two occasions on which Respondent paid money to the female informant, had sex with her, and did not obtain any information. They were friends for over 20 years and knew each other's families; the possible explanations are numerous. During the interview, Respondent expressed considerable remorse for lying initially and having sex with a known prostitute and drug abuser. Without more, given the background between the parties, Respondent's admission of this moral lapse does not constitute an admission of the crime of prostitution or a failure of good moral character. Advice of already-retained counsel might have clarified Respondent’s testimony by differentiating between the shame that Respondent felt and possible commission of a crime or failure to maintain good moral character. Certainly, contemporaneous legal advice might have lent meaning to Respondent’s dubious admission to the legal conclusion that he committed the crime of prostitution; the record provides no reason to believe that Respondent was aware of the legal elements of the crime, which another deputy testified had been prosecuted only once in the many years in DeSoto County. Another source of confusion is the Admonition itself. In general, the Admonition addresses the possibility of criminal and employment sanctions, but not professional discipline against Respondent’s law enforcement certificate. Most misleading is the second-to-last sentence, advising, “If you answer questions, as required, neither your statement nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding.” This statement tells Respondent that he is required to answer questions, although clearly he is not. Following the statement concerning employment with the DeSoto County Sheriff's Office, this statement mentions criminal proceedings, but nowhere is there any statement of Respondent’s due-process rights regarding a disciplinary proceeding against his certificate. Respondent was confused in the interview due to the inadequate and untimely disclosure of the nature of the charges; the misleading statements contained in the Admonition; the reading of the Admonition by the lieutenant, rather than Respondent's being allowed to read the Admonition itself, as the Admonition allows Respondent to do; the belated administration of the oath; the alternative interrogations by the lieutenant, then the major, and then the lieutenant; the failure to explain all of Respondent’s rights; and the failure to provide Miranda rights. These serious deficiencies undermined the reliability of Respondent’s arguably inculpatory statements to the point that they are inherently unreliable and not even, on their face, inculpatory.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of December, 1997, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1997. COPIES FURNISHED: Paul D. Johnston Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert M. Bader Robert M. Bader Law Office Post Office Box 3551 Port Charlotte, Florida 33949 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Florida Real Estate Commission (Commission) lawfully denied the application of Bradford Nutting (Petitioner) for licensure as a Florida real estate broker.
Findings Of Fact The Commission is the agency responsible for regulating the practice of real estate sales in Florida. Sometime in 2003, Petitioner applied for licensure as a real estate sales associate. In the application form for this license, Petitioner disclosed that he had been convicted, found guilty, or entered a plea of nolo contendere to three crimes: driving under the influence (DUI) in 1990, possession of a controlled substance in 1991, and another DUI in 2001. The Commission issued Petitioner a license as a real estate sales associate, and Petitioner currently works as a real estate sales associate. The Commission has never taken disciplinary action against Petitioner's current license. In May 2005, Petitioner applied for licensure as a Florida real estate broker. That is the application which is the subject of this case. In his broker's license application, Petitioner disclosed that he was convicted of three counts of domestic violence in November 2003 to which he pled nolo contendere. For these crimes, Petitioner was ordered to serve three years of probation. In May 2005, shortly after he applied for his broker license, Petitioner was convicted of one count of assault and one count of domestic violence. For these most recent offenses, Petitioner was sentenced to probation and ordered to attend a 26-week batterer's intervention program. Petitioner completed the intervention program, but he is still on probation. The matter of Petitioner's broker's license application was heard by the Commission in a public hearing held on August 16, 2005. With regard to the 2003 and 2005 convictions for domestic violence, Petitioner claimed to have pled to the crimes to avoid more serious charges made by his ex-wife and the possibility of going to prison. When asked whether his client was claiming to be innocent of the charges made by his wife, Petitioner's attorney replied, "Well, I don't know if you're totally innocent--I've never seen someone totally innocent." At the hearing before the Commission, Petitioner's testimony regarding the circumstances of the domestic violence incidents was evasive, ambiguous, and less than candid. One Commissioner tried, without success, to get Petitioner to explain the circumstances of the domestic violence convictions: Commissioner: What exactly happened that caused you to plea to those cases? Petitioner: It started with an incident . . . at my mother's condominium. And over a period of over approximately a week, all these various things happened. I basically got -- Commissioner: What happened? Petitioner: Well she kept claiming that -- well, she went out to a bar one night and got beat up. She came to my place of residence and asked me to help her. * * * She came back, you know, two or three days later, started harassing me again. * * * I got in my automobile and tried to leave the state and go back to Georgia, where I'm originally from. She followed me there. Ultimately, I ran to the point of having to stop for gas . . . and had another incident. Commissioner: What was the incident? Petitioner: Well, she was on pain pills again. Commissioner: What did you do that caused you to plead? Petitioner: I'm not sure I understand the question, sir. * * * Commissioner: But what happened to [make you] plead to the assault? Did you ever touch her? Petitioner: I physically touched her, which is, you know, a domestic violence charge. Petitioner showed similar evasiveness and lack of candor at the evidentiary hearing before the undersigned. Even though he pled to three counts of domestic violence in 2003, he claimed not to understand how he came to be charged with three separate counts. That claim is not credible. At the hearing, Petitioner repeated the evasive response he had given the Commission on August 16, 2006, to the effect that any touching amounts to an assault. His obvious purpose in giving this response was to imply that he had merely touched his wife during the incidents for which he was convicted of domestic violence. That claim is also not credible. Based on the more persuasive evidence in the record and taking into consideration the demeanor of Petitioner, his claim that he was not guilty of the crimes for which he was convicted, but pled no contest simply to avoid the possibility that his ex-wife's false charges would result in more serious sentences, is not credible. Every time Petitioner was asked a question about the circumstances of his domestic violence offenses, his answers omitted any description of his own actions and placed all blame on his ex-wife. Petitioner's evasiveness and lack of candor demonstrate his failure to acknowledge and take responsibility for his past actions. Petitioner's rehabilitation will not be complete before that occurs. The testimony by Petitioner's colleagues about his character was not sufficient to establish that Petitioner has been rehabilitated. Except (possibly) for Ms. de Graw, the witnesses were unaware of the circumstances of Petitioner's past convictions. Mr. Romano, who hired Petitioner in his current position as a real estate sales associate and who is Petitioner's supervisor, was unaware of the crimes for which Petitioner had been convicted and was unaware that Petitioner was on probation. Petitioner did not express confidence that he was rehabilitated. Insufficient time has passed from Petitioner's criminal offenses to support a finding that Petitioner is rehabilitated.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order denying Petitioner's application for licensure as a real estate broker. DONE AND ENTERED this 18th day of April, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 April, 2006.
The Issue Whether Respondent terminated Petitioner’s employment in violation of Chapter 760, Florida Statutes (2004), popularly known as the Florida Civil Rights Act of 1992 (Florida Civil Rights Act).
Findings Of Fact Petitioner is an Hispanic female. Petitioner was employed by Respondent in records for almost 15 years prior to July 16, 2004, when she was terminated. Respondent is a municipal corporation located in Miami- Dade County, Florida, and an employer within the meaning of the Florida Civil Rights Act. Respondent provides a variety of public services generally associated with cities of comparable size, including a full service police department. At all relevant times, Hispanics comprised approximately half of the police department's workforce. Many of these individuals were employed in supervisory capacities. Four Hispanics were supervisors in Petitioner's chain of command. In her position in records, Petitioner was responsible to timely and accurately process official police documents. Such processing included the completion of forms and transmittal documents and timely copying, filing and production of such documents to appropriate individuals and authorities (document processing). Failure to discharge any of the foregoing responsibilities is reasonably deemed by Respondent to be incompetence, and a firing offense(s). In her position in records, Petitioner was also responsible to comply with all directives of supervisors and to cooperate in internal affairs investigations. Cooperation in this context includes providing sworn statements and/or answering questions under oath as may be required by Respondent. Failure to comply with directives and to cooperate in internal affairs investigations are reasonably deemed by Respondent to be insubordination, and firing offenses. On April 29, 2004, a member of the public presented himself to records and requested a copy of an official police record to which he was entitled to access, specifically a traffic ticket. Records could not locate the document because it had not been properly processed by Petitioner, who was responsible for doing so. Having become aware of a problem with this particular document processing, Respondent thereupon took reasonable steps to determine whether this was an isolated error by Petitioner. In so doing, Respondent discovered and documented a high volume of document processing errors with respect to official police records for which Petitioner was responsible. In February 2004, one of Petitioner's supervisors – one who happened to be Hispanic -- issued a written directive (the February directive) to all records employees which required that they disclose, on a weekly basis, any "backlogs" of document processing work. In direct violation of the directive, Petitioner never disclosed existence of her backlog, which was, by April 29, 2004, extremely large. Now on notice of the backlog and deeply concerned about its potential effects on the police department and the public it serves, and pursuant to police department policy, an internal affairs investigation was initiated under the leadership of the same Hispanic supervisor. Over the course of the investigation, Respondent learned that the problem(s) revealed on April 29, 2004, were only the "tip of the iceberg." The internal affairs investigation uncovered “hundreds and hundreds” of additional document processing errors. Virtually all of the errors discovered involved official police records for which Petitioner was responsible. In the course of the internal affairs investigation, Petitioner was directed to give a sworn statement, and refused to do so, which refusal was deemed to constitute insubordination. Petitioner’s errors as documented in the internal investigation demonstrated incompetence. Her failure to comply with the February directive and to provide a sworn statement to internal affairs investigators constituted insubordination. At the conclusion of the internal affairs investigation, Petitioner was terminated for incompetence in the performance of her document processing responsibilities and for insubordination. Petitioner failed to discredit the factual underpinnings of Respondent’s decision to terminate her employment; neither did she establish any discriminatory basis upon which Respondent terminated her employment. Respondent replaced Petitioner with an Hispanic, who remained employed by Respondent through and including the time of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the FCHR enter its final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 14th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Christina Quintero 4780 Northwest 2nd Street Miami, Florida 33126 David C. Miller, Esquire Akerman Senterfitt Sun Trust International Center, 28th Floor One Southeast Third Avenue Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The parties stipulated to the facts alleged in paragraphs 1, 2, 3 and 4 of Count I of the Administrative Complaint, and to the facts alleged in paragraphs 1, 2, 3 and 4 of Count II, and the fact of the arrests as set forth in paragraphs 5 of Count I and Count II. The evidence indicates that Respondent applied for a Florida Real Estate Salesman's License on January 20, 1973, and thereon replied in answer to question 9, "Yes. Arrested for speeding by State Road Patrol. Do not have records. Occurrence over five years ago." On his January 15, 1975 application, Page responded to question 6, "Yes, traffic offenses." With regard to the application dated January 20, 1973, which is the subject of Count I, the evidence of arrest for traffic offenses reveals Page was arrested on April 6, 1969; October 8, 1970; and October 30, 1971. Obviously, Page could not report his arrest in January 2, 1973 on his application filed six months prior. Although Page indicated his arrest had been five years previous to his 1973 application, while in fact the last arrest had been 14 months before, the fact he reported these traffic offenses indicates that he did not seek to conceal these arrests or violate the statute. With regard to January 15, 1975 application, Page again referenced traffic offenses in response to question 6 but did not provide any information regarding any other arrests or charges. Clearly, the record of arrests for passing worthless bank checks, assault, and a family offense were not reported on either application. Page explained that these checks were issued by him during the period of a divorce and domestic turmoil and that this had resulted in the overdrafts. Each of these charges were dismissed upon restitution and payment of cost. Page did not explain the nature of the assault and battery charge, however, the record indicates it was dismissed upon nonappearance of the complaining witness. The Hearing Officer further notes that the record presented is not of an arrest but rather of an Information filed by the County Regarding the family offense, the only records introduced relative to this charge are an Information dated June 15, 1974 and the accompanying order of dismissal which indicates that the Information was improperly filed because the court lacked jurisdiction to consider the offense. The Hearing Officer finds, based on the facts relating to the traffic offenses, that the Respondent, Page, did not conceal or misrepresent these arrests. Clearly, he referred to traffic arrest or offenses on both his 1973 and 1975 applications. While his references nay have been less complete than one would desire, they evidence no intent to misrepresent or conceal the arrest and were apparently sufficient from the record presented at hearing for the Commission's staff to develop the details relevant to them. The charges relating to passing worthless bank checks were not reported on the application. Page explained the reason for these arrests at hearing, but offered no explanation of why they were not reported. The information charging Page with criminal non-support was improper from the outset as indicated in the Order of Dismissal because the court lacked jurisdiction over the subject. It is questionable whether there was an arrest, and the charge was a nullity. This "offense" was obviously related to the domestic problem which Page had had, not a criminal matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Commission exercise its discretion and approve Pace's applications for registrant as a salesman and broker-salesman, as it were, nune pro tunc, and take no action against his registrations. DONE and ORDERED this 23rd day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles Felix, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Gordon I. Page c/o Glenn D. Gerke 513 West Central Avenue Winter Haven, Florida 33880
The Issue The issue presented for decision herein is whether or not Respondent, Hazel Marie Bowling, is qualified to hold a Certificate as a law enforcement officer in Florida.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, stipulation of facts, and the entire record compiled herein, hereby make the following relevant factual findings. Respondent, Hazel Marie Bowling, was certified by the Criminal Justice Standards and Training Commission on July 3, 1979, and was issued Certificate Number 02-23702 as a law enforcement officer. On approximately December 17, 1981, Respondent was adjudicated guilty of the offense of filing a false report to law enforcement authorities, a misdemeanor involving perjury or false statement. (Stipulation of the parties) As mitigating factors, Respondent, through representative Henry C. Jones, pointed out that motions for a new trial and for an arrest of the judgment, referred to hereinabove, had been made but were "erroneously" decided, at least in the minds of Respondent and representative Jones. Respondent also points to the fact that she has been hired by the Hendry County Sheriffs" Department as a dispatcher and that to obtain that employment, she was subjected to a background check and was cleared by that agency for the dispatcher's position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent's certification as a law enforcement officer in Florida. RECOMMENDED this 7th of January, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1985.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times relevant hereto Respondent was certified by Petitioner as a law enforcement officer and he was employed by the City of Tampa Police Department. Respondent was married to Stephanie Brown and is the father of two of her children. Marital problems arose and in June 1983 they separated. At the time, Stephanie Brown owned and operated a barbershop. Each time Respondent and his wife met they argued. At a judicial hearing Respondent was directed to pay child support to his wife. The check he gave Stephanie in the presence of the judge, Respondent tried to recover when he left the courthouse. He was quite angry when Stephanie refused to return this check to him. That same evening, which Stephanie identified as October 24, 1983, Respondent came to the barber shop shortly before closing. Respondent was very angry and demanded return of the money he had been directed to pay as child support, told Stephanie he was sick and tired of her, and did not intend to lose his job because of her complaints. At this time Stephanie was sitting behind her desk at the salon and Respondent was standing in front of the desk. During the argument Respondent tilted the desk toward Stephanie and a letter opener fell off the desk. This letter opener, which was described by Stephanie as having a metal blade approximately, eight inches long, was picked up by Respondent and waved around by him as they argued. Stephanie testified that Respondent was close enough to cut her with the letter opener and that she was afraid he would: however, no evidence was presented that Respondent made any attempt to use a letter opener as a weapon or made any specific threat to harm Stephanie with the letter opener. Ms. Jackson, a customer of Stephanie's who knew Respondent, came in from the back part of the salon and saw Respondent and Stephanie arguing, with Respondent holding the letter opener. She attempted to calm Respondent and apparently succeeded since 'Stephanie testified that after Ms. Jackson calmed Respondent down he cried and was upset. Stephanie also testified that on another occasion Respondent came in the salon shortly before closing and they again got into an argument. Although Respondent was off duty, Stephanie knew he was armed because he "always carried his pistol the course of this argument Stephanie never saw Respondent draw his pistol, have it in his hand, or even have the pistol exposed where she could have seen it. Stephanie testified that an employee' of hers, Yvette Spann, came in while she and Respondent were arguing and later told Stephanie that she had seen a gun in Respondent's hand. This hearsay testimony was corroborated no admissible evidence. The police officer who investigated the charges Stephanie had made against Respondent was the second witness called by Petitioner. This officer had no first-hand knowledge of either of the assault charges preferred against Respondent. As a result of Sergeant Wilkinson's investigation Respondent was discharged from the Tampa Police Department.
The Issue DOAH CASE NO. 85-1417 The issues in this case are those promoted by a Notice To Show Cause/Administrative Complaint brought by the Petitioner against Robert W. Browning as general partner in the limited partnership known as A.S.R.B. which does business as Suwannee Trails. In particular, it is asserted that Browning, in the aforementioned capacity, offered and disposed of, or participated in the offer and disposition of subdivided lands without having a valid order of registration, and without being exempt from the requirements of registration, and by such activity violated Section 498.023(1), Florida Statutes.
Findings Of Fact DOAH CASE NO. 85-1417 A.S.R.B. Limited Partnership, a Florida limited partnership which will be described in further reference as A.S.R.B., is the subdivider, as that term is defined by Section 498.005(18), Florida Statutes, of Suwannee Trails, Unit I, a subdivision. as the term is defined by Section 49S.005(19), Florida Statutes. This subdivision is found in Hamilton County, Florida. On April 11, 1983, A.S.R.B., in the person of Robert W. Browning, made application with the Petitioner to be granted an exemption from the requirements of Chapter 498, Florida Statutes, pertaining to the need to register with the Petitioner prior to the offer, sale or disposition of the afore mentioned subdivided lands. This request for exemption was under the terms of Section 498.025(3), Florida Statutes. The application for exemption was accompanied by an exemption affidavit executed by Browning as general partner for A.S.R.B. Through this affidavit Browning promised that the A.S.R.B. and Robert W. Browning ". will not offer or dispose of these subdivided lands until registered or exempt from registration under applicable statutes." Notwithstanding the representations which Browning made as the general partner of A.S.R.B., a position which he held on April 11, 1983, and has continued to hold, sales were made prior to registration and prior to obtaining any exemption from registration. The property which Browning had requested the Petitioner to exempt from registration, Suwannee Trails, Unit I, is constituted of Lots 1 through 55. Within that tract, A.S.R.B. sold Lot No. 45 to Jesse H. Tyre, on March 21, 1983, and Browning executed the conveyance document. Likewise, Browning executed the conveyance document for Lot No. 40, a sale to J. T. Bridges, Jr., which occurred on April 11. 1983, the date upon which the application for exemption was made. Other lots which were conveyed in Suwannee Trails, Unit I prior to July 11, 1983, were Lots 1, 2, 4, 5, 6, 8, 41, 42, 44, 47, 49 and 50. On July 11, 1983, in response to the request by Browning that A.S.R.B. be exempt from the requirements of Chapter 498, Florida Statutes, related to registration, an order was entered granting the exemption. This order was pursuant to the exemption contemplated by Section 498.025(3), Florida Statutes. It pertained to the 55 lots within Suwannee Trails, Unit I. No order of registration has ever been given for those lots within Suwannee Trails, Unit I, nor has any showing been made that either A.S.R.B. or Browning ever sought or was entitled to exemptions as set forth in Sections 498.025(1) and (2), Florida Statutes. In testimony presented in the course of the hearing, Robert W. Browning asserted that he was entitled to offer and dispose of the lots within Suwannee Trails, Unit I as early as April 1983. He was persuaded that effective that month and year those Lots 1 through 55, excluding Lots 10 through 20, were exempt from the requirements of registration announced in Chapter 49S, Florida Statutes. He offers these remarks based upon an alleged conversation which he had with an inspector employed by the Petitioner, one Jim Fulghum. According to Browning, Fulghum told him that lots other than 10 through 20 could be sold e£fective April 1983. Those lots, 10 through 20, could not be sold because of some problems of access to those lots, as Browning explained in describing remarks which Fulghum allegedly made to him. Having considered the remarks of Browning on the topic of Fulghum's reputed indication that lots other than 10 through 20 were exempt from the requirements of registration effective April 1983, and having in mind the testimony in this case, the tangible evidence presented and the provisions of Chapter 498, Florida Statutes, especially Section 498.025(3), Florida Statutes, which indicates-that an order of exemption is given upon a demonstration of a satisfactory showing that a subdivider is qualified for such order of exemption, as opposed to the idea that a subdivider is automatically entitled to such exemption upon application, Browning's testimony as to conversation with Fulghum about the exemption dating from April 1983 is not credited. In addition to rejecting those facts, Browning's remarks as to prior practices of the Petitioner in dealing with projects that Browning was affiliated with do not lead to the conclusion that in those other two subdivisions the State had condoned allowing transactions to be pursued before the grant of an order of exemption. In any event, the March 21, 1983, sale of Lot No. 45 occurred prior to Browning's contention that sales were exempt effective April 1983. Again this refers to Lot No. 45 within Suwannee Trails, Unit I.
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.
Findings Of Fact Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.
