The Issue Should Respondent be terminated from the Polk County School System based on the allegations contained in the letter from Gene Reynolds, Superintendent of Schools (Superintendent), Polk County, Florida, dated March 15, 1999?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary, and adult education in Polk County, Florida, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent is employed by the Board as an elementary classroom teacher, a position he has held since March 8, 1993. During the 1998-99 school year, Respondent was employed as a kindergarten classroom teacher at Eastside Elementary School, located in Haines City, Florida. During his employment as a classroom teacher with the Board, Respondent has received satisfactory evaluations. Prior to the events giving rise to this proceeding, Respondent has had no disciplinary problems during his employment as a classroom teacher with the Board. In January 1999, Respondent missed three days of school as a result of an ankle injury. While Respondent was absent, a substitute teacher taught his classes. While looking for a video tape to show the class, the substitute teacher discovered what appeared to be a pornographic video tape in the cabinet next to the video cassette recorder where other video tapes used in the classroom were stored. The substitute teacher removed the video tape and delivered it to Josephine Howard, principal of Eastside Elementary School. The video tape contains explicit, graphic, hard-core pornographic sequences of adult men engaged in explicit sexual acts. Respondent purchased the video tape at a local video store and brought it to Eastside Elementary School for purposes of viewing the tape when students or other persons were not present. Respondent stored the video tape in the classroom in an unlocked cabinet next to the video cassette recorder with other video tapes used for educational purposes Respondent did not desire or intend to allow students to view the video tape. However, since the video tape was stored in an unlocked cabinet, students did have access to the video tape and could have inadvertently viewed the video tape. This incident has not been reported in any newspaper, including those covering the Polk County area, nor has there been any coverage by any radio or television station, including those covering the Polk County area. Other than the incident being brought to the attention of the Board for disciplinary purposes and the news release of the Board's action, the incident has not been made public. In fact, there has been a concerted effort by the Board, the Superintendent's office, and the office of the principal at Eastside Elementary School to prevent this matter from becoming public until after final action by the Board. Since the public is not generally aware of this matter, there has been no outcry of public, parental, or student demand for Respondent's dismissal. Likewise, there has been no demand by any parent that their child not be placed in Respondent's class. Although there has been no public "airing" of this incident, there has been an inquiry by at least one newspaper for the facts of this incident after final action by the Board. Therefore, it appears that there will be a public "airing" of the facts of this incident upon final action by the Board. Respondent has received numerous awards for his teaching technique and work in education. Additionally, Respondent has the support of his friends, associates, and fellow church members. Josephine Howard has taught or held positions as principal or as an assistant principal in the public schools in Haines City, Florida for approximately 30 and one half years. Sixteen and one half of those years have been as either a principal or as an assistant principal. Josephine Howard has lived in Haines City, Florida for approximately 34 years. Josephine Howard, based on her knowledge of, and experience with, the staff at Eastside Elementary School, and her knowledge of, and experience with, the community of Haines City and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher at Eastside Elementary School, as well as other schools within the community of Haines City, would be impaired. Dennis Dunn has been employed by the Polk County School Board for 30 years, holding positions as a teacher (in elementary school, junior high school, and high school), assistant principal, principal (in junior high school and high school), deputy superintendent, and assistant superintendent for personnel. Mr. Dunn's work with the Polk County School System has brought him in touch with not only the community of Haines City, but all of the communities within Polk County, Florida Dennis Dunn, based on his knowledge of, and experience with, the staff of the several public schools in Polk County and his knowledge of, and experience with, the several communities that make up Polk County and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher within all of Polk County would be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding that Petitioner committed misconduct in office, that just cause for dismissal has been shown, and that Petitioner's contract of employment with the Board is terminated. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP Post Office Drawer 30 Bartow, Florida 33831 Phillip E. Kuhn, Esquire 1533 Tomahawk Trail, South Lakeland, Florida 33813 Mark S. Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds Superintendent of Schools Polk County School Board 1915 South Floral Avenue Bartow, Florida 33830-0391 Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Inside Entertainment, Inc., which trades under the name of Fox Hunter, is the holder of beverage license No. 58-770, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located at 1718 South Orange Avenue, Orlando, Florida. The petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State of Florida. On November 15, 1979 , Beverage Officer W. R. Wiggs entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He was approached by Linda Kay Fardette who offered to give him a "lap dance," which he accepted. To perform the "lap dance," Ms. Fardette straddled Officer Wiggs' lap, rubbing her pubic area against his genitals in a series of gyrations performed during the playing of a musical recording. She wore a bikini bottom, however, her breasts were bare and made contact with Wiggs during the "lap dance." Ms. Fardette offered a second "lap dance" to Officer Wiggs which he also accepted. She asked and received three dollars for each of the two "lap dances." During these "lap dances," Officer Wiggs became sexually aroused, obtaining penile erection. (Count 3). Officer Wiggs observed Ms. Fardette move to the stage to perform a dance routine announced over the public address system. During this dance, Ms. Fardette removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 1). Officer Wiggs was approached by Brenda Macy Janciak, who offered him a "lap dance." He accepted and paid three dollars for each of two "lap dances." The motions, upper body nudity and contact were similar to that of Linda Kay Fardette, detailed above. Officer Wiggs was sexually aroused during the "lap dances," obtaining penile erection. (Count 4). Officer Wiggs observed Ms. Janciak move to the stage upon introduction over the public address system. During the dance routine, Ms. Janciak removed all her clothes and exposed her vagina to patrons in the audience. She ran her finger through the lips of her vagina while so exposing herself. (Count 2). On November 15, 1979, Beverage Officer J. E. Kiker, Jr. entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed Bonnie Joy Sawyer onstage, where she was introduced by a mistress of ceremonies. Her dance involved complete nudity. At one point, Ms. Sawyer spread her legs, exposing her anal-vaginal area, which she illuminated with a cigarette lighter. The dance also involved rubbing her pubic area with her hand and moving her hips in an undulating fashion. (Count 5). Office Kiker observed Leah Damaris Wilson perform a similar dance onstage. Again, this dance involved total nudity, exposure of her anal-vaginal area and illumination of this area with a cigarette lighter. (Count 6). Officer Kiker observed Wendy Kay Knight perform a nude dance. She was introduced by the mistress of ceremonies, disrobed during the dance sequence, exposed her vagina and rubbed her pubic area during the dance. (Count 9). Wendy Kay Knight also performed a "lap dance" with Officer Kiker for a five-dollar charge. The "lap dance" was performed as described above and involved the rubbing of Ms. Knight's pubic area against Officer Kiker's genitals. Her breasts were bare and made contact with his person. Officer Kiker became sexually aroused during the "lap dance," obtaining penile erection. (Count 14). Officer Kiker observed a woman known as "Marlene," who was dancing onstage. She approached him and offered to perform a "lap dance" for a charge of five dollars. The "lap dance" was performed as described above, with "Marlene" rubbing her pubic area against Officer Kiker's genitals. Her nude breasts made contact with him during this dance. Officer Kiker became sexually aroused during the dance, obtaining penile erection. (Count 15). On November 19, 1979, Beverage Officer M. L. Imperial entered the licensed premises of Fox Hunter to investigate alleged Beverage Law violations. He observed a woman known as "Nina" on the stage. She disrobed onstage and was totally nude during a portion of the dance. During this routine, she bent over, exposing her vaginal and anal openings to the audience and running her finger through the lips of her vagina. (Count 7). Officer Imperial observed a woman known as "April" dance onstage while completely nude. She performed essentially the same gestures as "Nina," bending over so as to expose her anal and vaginal openings and running her finger through the lips of her vagina. (Count 8) Officer Imperial observed Darlene Helen Poulliot dance onstage partially nude. She performed a dance routine similar to that of "April" and "Nina," hut did not remove the bottom of her bikini costume. (Count 10). Officer Imperial observed a woman known as "Sunny" dancing while completely nude. She spread the lips of her vagina and used a cigarette lighter to illuminate this orifice. She also ran her finger through her vaginal lips. (Count 12). Officer Imperial was approached on separate occasions by Bonny Joy Sawyer and Leah Damaris Wilson, who each offered him "lap dances." He accepted one "lap dance" from Ms. Sawyer and two from Ms. Wilson, paying five dollars for each "lap dance." The women straddled Officer Imperial, rubbing their pubic areas against his genitals and performing a series of gyrations. The women wore only bikini bottoms and had breasts exposed during the "lap dance." Officer Imperial did not become sexually aroused. (Counts 16 and 17). The Respondent stipulated to the fact that the stage dancers received tips from patrons and did not contest that the above named dancers were employees or agents of the licensee. Neither did Respondent deny that the stage dancing and "lap dancing" were within the scope of their employment. Respondent takes the position that nude dancing is generally tolerated in the Orlando area and that "lap dances" do not constitute sexual behavior as Petitioner asserts. Respondent presented, as an expert witness, an associate professor of psychology at the University of Central Florida. The witness holds a doctorate in psychology and teaches courses in human sexuality. This testimony established that nude dancing and "lap dancing" are typical in the so-called adult entertainment field. While he did not deny the sexual connotations of these dances, he established that fantasies play a part in the arousal of male patrons. In this regard, Respondent also presented a lay witness who frequents topless bars and who has not been aroused by "lap dances."
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Section 800.03, Florida Statutes (1979), as charged in Counts 1, 2, 5, 6, 7, 8, 9 and 12 of the Notice to Show Cause/Administrative Complaint. It is further RECOMMENDED that all other charges alleging violation of Section 800.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that all charges alleging violation of Section 877.03, Florida Statutes (1979), be dismissed. It is further RECOMMENDED that Respondent, Inside Entertainment, Inc., d/b/a Fox Hunter, be fined $1,000. RECOMMENDED this 5th day of February, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, 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 5th day of February, 1981. COPIES FURNISHED: James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard L. Wilson, Esquire Metcalf Building, Suite 909 100 South Orange Avenue Orlando, Florida 32801
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Jacob Francis Miller, Jr., t/a Jake's Place, held 2-COP License No. 26-00705 for the consumption on the premises and package sales, located at 315 South McDuff Avenue, Jacksonville, Florida, of beer and wine. On January 27, 1983, John T. Lachman, an investigator with Petitioner, Division of Alcoholic Beverages and Tobacco, acting on a complaint of prostitution, lascivious conduct, and soliciting for drinks at Respondent's place of business, entered the premises in the evening, purchased a beer, and sat down at one of the tables. On this occasion, he was alone. Shortly thereafter, he was approached by a white female employee of the Respondent, Monica L. Todd, who was wearing a bikini bottom-and-top dancing outfit. She asked Lachman if she could dance for him and, when he agreed, she did so through four songs. Each dance lasted the length of one song. During each of the dances, which she accomplished while standing between his legs while he was seated on the chair, she would alternate between facing him and turning her back to him. When her back was toward him, she would rub her buttocks against his groin. After the four dances, he paid her her fee of $10. Lachman came back to this bar on February 17, 1983. This time, he was in the company of Beverage Agent Wilder and Deputy Sheriff Bennett. The three men purchased beers and went to sit at a table. Shortly, they were approached by Maudine Smith, a white female who was wearing a bikini bottom-and-top dancing costume. She offered to dance for them, and Lachman agreed for her to do two dances, for which she charged him $5. Again, she danced between Lachman's legs while he was seated; and while her back was toward him, she rubbed her buttocks in his groin area. When she faced him, she removed her top and rubbed her bare breasts in his face. Monica Todd also danced for Lachman on February 17, 1983. During her dance, which was accomplished between his legs while he sat on the chair, she rubbed her buttocks in his groin. There was no evidence to show that she removed her top and rubbed her breasts in his face. However, for her dance, she was paid $3. A third dancer entertained Mr. Lachman on February 17, 1983. Linda Jean Ford came over to him, sat on his lap, and asked him if she could do a $5 dance for him. When he asked her what that was, she replied she would have to show him. He paid her the $5, whereupon she took off her bikini top and danced for him, standing between his legs and alternately rubbing her breasts in his face and her buttocks against his groin. That same evening, Lachman also saw Ford and Smith dance for Mr. Bennett, who was sitting three to four seats (approximately 10 feet) away from him. Lachman observed Ford rub her naked breasts in Bennett's face and her buttocks against his groin while she was dancing for him. He also saw Smith rub her buttocks in Bennett's groin area during her dance. The lighting in the bar on this occasion was good enough for Lachman to see the farthest reaches of the establishment. There were six or seven patrons in there while all this was going one--some at the bar and some at the tables attended by a bartender who was identified as Santiago Santiago. It was obvious that the bartender could see what was going on, but neither he nor anyone else in the place made any effort to stop this dancing. Respondent was not in the bar while Lachman was there on either January 27 or February 17, 1983. Investigator Wilder, as was stated above was in Respondent's establishment with Lachman on February 17, 1983, and was treated to similar action by Ms. Smith, who did three dances for him. The first one Lachman paid for; and during her dance, she rubbed her naked breasts in his face. During the second and third dances that evening, for which Wilder himself paid her $5, she alternated rubbing her naked breasts in his face with rubbing her buttocks in his groin area. As a special added attraction during the third dance, she also put her foot up on the edge of his chair between his legs and rubbed the top of her foot against his groin. After the third dance, Smith went away and came back about five minutes later, again asking if she could dance for Wilder. When he declined this offer, she said, "Well at least you can buy me a drink." Wilder agreed to this and gave her $2. She immediately took it, went over to the bar with it, and then took her favors off to another customer. Respondent does not deny the occurrences alleged. He contends, however, he was not aware of it at the time or of the likelihood it would take place. He was not present in the bar on either occasion and generally works from noon to 7:00 p.m., coming in again at 2:00 a.m. to close up. Respondent opened the bar upon his separation from the Navy in 1982. It is a small neighborhood establishment that employs only one bartender. When he started his business and was approached by the girls who wanted to dance in his bar, he told them he was going to run a clean place. However, though he did no background investigation of many of the girls he hired, he was familiar enough with that type of person and their proclivities to have them sign a statement of house policies that included prohibitions against drugs, prostitution, soliciting drinks, touching of customers, and husbands or boyfriends in the bar during working hours. In light of that, it is hard to conclude he did not know the risks involved in allowing that type of person to work in the bar, especially considering his Navy service. Respondent maintains a personal friendship with Deputy Sheriff Bennett, who comes into the bar periodically. Respondent contends he has requested that Bennett arrest any of the girls working in the bar who are seen doing the kind of activity complained of here. Respondent also contends he is not familiar with the practices of Petitioner, and the former district supervisor's approach to him regarding these violations was foreign to him. He relates that Capt. Caplano suggested Miller "make an offer to keep [the] bar open." As a result, he signed a stipulation which called for a letter of warning and immediately terminated the dancers. When he did that, his business dropped immediately and he put the place up for sale. To facilitate the sale, his business broker advised him to start it again so that prospective buyers could see customers in the place. As soon as he did that, his proposed settlement was disapproved and a hearing was set up.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT: Respondent pay an administrative fine of $500. RECOMMENDED this 9th day of May 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of May 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Jacob F. Miller, Jr. 315 South McDuff Avenue Jacksonville, Florida 32205 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether respondent's alcoholic beverage license should be disciplined on grounds that (1) illicit drugs were sold and delivered on its premises by its agents and employees, and (2) its premises was used for the selling and delivery of illicit drugs.
Findings Of Fact Butch Cassidy's Saloon Licensee, 1431 Corporation, owns a business known as Butch Cassidy's Saloon located at 1431 North Federal Highway, Dania, Florida. In connection with its operation of Butch Cassidy's, Licensee holds alcoholic beverage license No. 16-02422 series 2-COP. Under this license, Licensee sells beer and wine for on-premises consumption. Soft drinks and sandwiches are also served. The entertainment consists of female nude dancers who perform to juke box music. Licensee is owned by Don Austin and George Sherman. Austin and Sherman operate and manage Butch Cassidy's Saloon; they alternate work shifts so that, except for short temporary absences, one or the other is always on the premises. The premises contain a bar, a stage and runway for the female dancers, two dressing rooms, a business office, and rest rooms. It is dimly lit, though not completely dark; the lighting is most pronounced above the pool tables and along the length of the dance stage. II. Sale or Delivery of Controlled Substances on Premises On August 10, 1981, at approximately 11:30 p.m., Beverage Officer L. Terminello entered Butch Cassidy's Saloon ("the premises") with a confidential informant. After sitting at the rear of the premises, he asked "Connie," a female dancer employed by Licensee, if she' could sell him some quaalude tablets; she answered affirmatively. Several minutes later, she returned and handed him five tablets; he paid her $15. Subsequent laboratory analysis of the tablets by the Broward County Sheriff's Office revealed the presence of diazepam. (Testimony of Terminello; P-16.) On August 12, 1981, at approximately 9:40 p.m., Officer Terminello again entered the premises and sat at a table at the rear. After some initial conversation, a customer known as "Jerry" asked him if he would buy some ludes"; Terminello agreed. Jerry placed the tablets on Terminello's table. Terminello picked them up and gave him $3 for each tablet. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P- 15.) Later on that evening (August 12, 1981), Connie, in response to Officer Terminello's request, sold him another quaalude tablet for $2. The transaction took place, again, at a table located opposite the stage, at the rear of the premises. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Terminello; P-17.) On August 15, 1981, at approximately 11:30 p.m., Officer Terminello again entered the premises and sat at a table at the rear. He asked a female dancer known as "Dusty" (who was employed on the premises) whether she had any cocaine or quaaludes. She said she had none but offered, instead, a marijuana cigarette which she took from her pocketbook and handed him. He left her a tip of $1 for the cigarette. This drug transaction occurred in the vicinity of the pool table, an area which is well-lighted in relation to other parts of the premises. Subsequent laboratory analysis of the cigarette confirmed that it contained cannabis. (Testimony of Terminello; p-18.) On August 19, 1981, at approximately 10:40 p.m., Officer Terminello reentered the premises and sat at another table in the vicinity of the pool table. He again asked Dusty, a female dancer, if he could buy some cocaine. She said he might be able to purchase some from "Don," the doorman, but that he sold a lot of cocaine by "stepping on it"--a street term for cutting cocaine. She told him that another dancer, known as "Renee," could provide better cocaine; he decided to wait for Renee. While waiting, he asked Dusty if she would sell him some quaalude tablets; she agreed and delivered two tablets to him at his table. He paid her $3 each. Subsequent laboratory analysis of the tablets revealed the presence of diazepam. (Testimony of Terminello; P-19.) Dusty then asked Terminello if he wanted to smoke a "joint," meaning a marijuana cigarette. They then walked outside to the parking lot and smoked the cigarette. Subsequent laboratory analysis indicated that the cigarette contained cannabis. (Testimony of Terminello; P-20.) Later that evening, at about 1:00 a.m., Officer Terminello returned to the premises and contacted Dusty for the cocaine promised earlier. Dusty went over and talked to Renee, then returned to Terminello's table near the pool table. She told him that the cocaine would cost $80. He handed her $80 which she placed in her pocketbook. Shortly thereafter, she returned from a dressing room and handed him a plastic bag containing white powder. This exchange took place in an area where there were 15-20 patrons; several of them were 2-3 feet from Terminello. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-21.) A short time later, Renee asked Officer Terminello if he wanted to purchase more cocaine; he replied that he would buy another one-half gram. After completing her performance on the dance floor, she agreed to sell him one- half gram for $40. At her request, he placed $40 in her garter belt; shortly thereafter, she returned from the dressing room and handed Terminello a white zip-lock bag of white powder. This transaction took place in a relatively well- lighted area, with a clear line-of-sight to the dance stage and bar. Subsequent laboratory analysis of the powder revealed the presence of cocaine. (Testimony of Terminello; P-22.) Officer Mike Berk of the Broward County Sheriff's Office entered the premises (with Terminello) at approximately 12:30 a.m., on August 20, 1981. After sitting at a table near the dance stage, he asked a female dancer (employed by Licensee) known as Robin" if he could buy some quaaludes; she handed him one white tablet. This exchange took place in a relatively well- lighted area of the bar. Subsequent laboratory analysis of the tablet revealed the presence of diazepam. (Testimony of Berk; P-23.) On August 29, 1981, at approximately 11:45 p.m., Beverage Sergeant George Miller entered the premises, sat at a table near the dance stage, and asked a female dancer (employed by Licensee) known as "Jackie" if she could get him some quaaludes. She asked him to wait. Approximately an hour later, she indicated that she could obtain some quaaludes; she approached the bartender (employed by Licensee) known as "Rusty." He removed a tablet from his pocket, laid it on the bar, and cut it in half. He handed one-half of the tablet to Jackie who returned to the table and handed it to Miller. Subsequent laboratory analysis ,of the one-half tablet revealed the presence of diazepam. (Testimony of Miller; P-24.) On September 2, 1981, Sergeant Miller reentered the premises, sat at a table near the dance stage and was joined by a female dancer (employed by Licensee) known as "Candy." From her seat, she shouted to Dusty, the bartender (who was approximately 10 feet away) : "Make some calls for some ludes, I want to get f cked up." (Testimony of Miller.) On September 10, 1981, at approximately 8:15 p.m., Beverage Officer Mike Imperial entered the premises, sat at the bar and asked Connie (a female dancer) if there were any "ludes" around. She replied that she didn't know but she would check. She then asked Jackie who, in turn, said she would check with "Ann," another female dancer employed by Licensee. Jackie then returned and said that no one had any quaaludes. Connie then told Imperial that she would be off-duty the next day but that she would leave six quaaludes for him with Tom, the bartender. She then told the bartender that she would leave something with him to give to Imperial (and his companion) the next day. (Testimony of Imperial.) The next day, September 11, 1981, at approximately 7:20 p.m., Officer Imperial reentered the premises and spoke with Tom, the bartender. Tom told him that Connie had not arrived yet, that he would check around the bar but that he doubted anyone had quaaludes because it was too early. Imperial then departed the premises. (Testimony of Imperial.) The next day, September 12, 1981, at approximately 7:00 p.m., Officer Imperial (accompanied by a confidential informant) returned to the premises. They sat at the bar, where Tom, the bartender, told them that the quaaludes were not then available but would be there soon. Shortly thereafter, Tom went to the rest room, then returned to the bar and handed Imperial ten white tablets wrapped in a bar napkin. Tom then handed the informant (who accompanied Imperial) a loose tablet and openly stated, "Here's one for the road." Subsequent laboratory analysis of the tablets revealed the presence of methaqualone. (Testimony of Imperial; P-25.) On September 23, 1981, at approximately 8:30 p.m., Beverage Officer Imperial (with his confidential informant) reentered the premises, sat at the bar, and asked a female dancer (employed by Licensee) known as "Gail" if there was any "pot" around. She replied that she would see if she could find him some; later, she returned and handed the confidential informant two cigarettes. Subsequent laboratory analysis of the cigarettes revealed the presence of cannabis. (Testimony of Imperial; P-26.) On September 28, 1981, at approximately 4:10 p.m., Officer Imperial reentered the premises and sat at the bar. He observed an unidentified female dancer (employed by Licensee) approach Tom, the bartender, and ask if he had a "joint." Tom replied that he had one, then removed a partially smoked cigarette from his wallet and handed it to the dancer. She placed it in her mouth and asked him for a light; he replied, "Don't do that here, I'm already on probation." The dancer then departed, saying that she would smoke it in the dressing room. Several patrons were nearby when this exchange took place. (Testimony of Imperial.) III. Open, Persistent, and Recurring Nature of Illicit Drug Activity on the Premises The illicit drug transactions described were open, persistent, and recurring; they took place in fairly well-lighted areas of the premises. The actions of Licensee's employees who engaged in such activities can fairly be described as practiced and routine. When undercover law enforcement officers asked for illicit drugs, the employees actively cooperated in an effort to accommodate them. The drug activity on the premises was not isolated or limited to one or two employees; it was pervasive during the evening hours, involving at least six different employees or agents. Drugs were either available on the premises or readily obtainable. During the course of the two-month investigation, at least ten illicit drug transactions took place on the premises. (Testimony of Terminello, Imperial, Berk, Miller.) However, no evidence was presented which established that, during the time in question, illicit drugs were actually used on the premises. Several customers testified that they had never seen anyone selling, buying, or using drugs on the premises, that no one had ever approached them attempting to buy or sell drugs. 2/ (Testimony of Leighton, Redgate, Johns, Smith, Bushmann.) George Sherman and Don Austin, owners and operators of the bar, testified that they had a policy against the use or sale of drugs on the premises; that they advised new employees of this policy, posted a sign in the dressing room restating the policy, 3/ and fired employees who violated it. However, the practiced and recurring nature of the drug transactions demonstrates that their anti-drug policy was not diligently and aggressively implemented. The drug transactions took place in a relaxed atmosphere of permissiveness. The employees made little effort to conceal the transactions; drug use was openly discussed and joked about. Neither George Sherman nor Don Austin were personally involved in any of the drug transactions in question. However, they failed to aggressively monitor and supervise their employees; they failed to effectively emphasize that drug activity on the premises would not be tolerated. Their lack of diligence in this regard allowed their employees to develop an attitude which fostered illicit drug activity on the premises. (Testimony of Sherman, Austin, Terminello, Berk, Miller, Imperial.) The open, persistent, and practiced nature of the drug transactions on the premises supports an inference that, if Austin and Sherman did not know that they were occurring, they should have known with the exercise of reasonable diligence. (Testimony of Terminello, Berk, Miller, Imperial.) During the 4 1/2 years it has operated the premises, the Licensee has not been found guilty of violating the beverage law or any other law of this State. (Testimony of Sherman, Austin.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division of Alcoholic Beverages and Tobacco suspend respondent's beverage license for 120 days. DONE AND RECOMMENDED this 23rd day of December, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 23rd day of December, 1981.
The Issue Whether or not, on or about January 25, 1977, in the licensed premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida, the licensed premises of the Respondent, the Respondent's employee, agent, servant, or entertainer, to wit: Linda Sue Richardson and/or Gayle Jeanette Landrum, allegedly employed at the licensed premises or employed on a contractual basis by the Respondent to entertain, perform, or work on the licensed premises known as, Tigers Den A Go Go, did commit or engage in a lewd and lascivious performance by a live person by committing obscene and indecent acts in violation of 847.011, F.S. and thereby subject the licensee to the penalty provisions of s. 561.29, F.S.
Findings Of Fact At present and at all times pertinent to this cause, to include January 25, 1977, the Respondent, Mardi Gras De Tampa, Inc., was the holder of license no. 39-0246, series 4-COP, held with the State of Florida, Division of Beverage. This license was held to trade as Tigers Den A Go Go in a premises located at 1600 North Dale Mabry Highway, Tampa, Hillsborough County, Florida. On January 25, 1977, officers of the Hillsborough County Sheriff's Office entered the licensed premises. The officers were Detectives Ridgeway and Coakley. While in the licensed premises the officers observed an entertainer Linda Sue Richardson dancing. In the course of the dancing Richardson inserted a plastic straw into the g-string costume which she was wearing, and simulated masturbation. The officers also observed Richardson, in the course of the dance, take a napkin and rub it on her vagina, and then roll the napkin up and place it in her mouth and simulate oral sexual activity. At the time the officers were in the licensed premises and on the same date, they observed the dancing of a second female entertainer, one Gayle Jeanette Landrum. They saw Landrum place her hand in her g-string costume and simulate masturbation. Landrum also fondled her breasts in a provocative manner. The exact location within the licensed premises where the above described dancing took place is not specifically known, beyond the fact that one dancer was dancing on a large stage behind the bar and the other dancer was dancing on a smaller stage which was placed in the area where patrons would be seated. The dancing took place at a time that customers were in the licensed premises. The two women were arrested and charged with lewd and lascivious conduct and both were convicted of a violation of s. 847.011, F.S. On the date of the arrest of the two dancers, Carol Alcorn was in charge of the licensed premises in the capacity of manager. Alcorn was also serving as bartender on that occasion. The two female entertainers were employed on January 25, 1977 for compensation by the Respondent, Mardi Gras De Tampa, Inc. The two women were operating under the specific instructions of the Respondent on the subject of their conduct while performing. These instructions were generally to not commit acts which would be considered lewd and lascivious within the meaning of the "Florida Law". In addition the dancers were not to touch themselves or fondle themselves or let customers touch them. The women had been told these basic rules in individual conferences. Another policy which the management had, was to call the performers attention to any improper conduct, and dismiss performer if the performer failed to abide by management rules on the subject of proper conduct. In fact, the Respondent's management employees had corrected dancers before. On the occasion when the officers observed the conduct of Richardson and Landrum, it is unclear what period of time was encompassed to achieve the acts described. In the normal course of events the women would have been dancing for the duration of three records, which would be approximately nine minutes. They would have been dancing as a part of a group of six to eight dancers. The bartender would have been able to see any dancer performing on the stage behind the bar or performing on the stage in the area where the patrons were seated. The view of the two stages from the location the bartender would have behind the bar would have been unobstructed. Whether or not the bartender, Carol Alcorn, actually saw the subject dancing of Richardson and Landrum can not be determined from the facts offered in the hearing. What was shown was that the bartender went to the restroom, which was away from the bar itself, and was confronted by the two officers when leaving the restroom area. This confrontation was for the purposes of complaining about the activities the officers had observed on the apart of Richardson and Landrum. The acts which took place in the course of the dancing, by Linda Sue Richardson and Gayle Jeanette Landrum, constitute lewd and lascivious conduct within the meaning of s. 847.011, F.S. From the facts presented in the course of the hearing, it has not been shown that the Respondent, Mardi Gras De Tampa, Inc., has violated s. 561.29, F.S., as a result of the acts of their employees Linda Sue Richardson and Gayle Jeanette Landrum. The facts do not show that the Respondent is responsible for those acts of the employees either through its own negligence, intentional wrongdoing, or lack of diligence.
Recommendation It is recommended that the charge filed by the Petitioner against the license of Mardi Gras De Tampa, Inc., t/a Tigers Den a Go Go, under license no. 39-0246, series 4-COP, as set forth above, be dismissed. DONE AND ENTERED this 28th day of July, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Tom Whitaker, Esquire Division of Beverage 403 North Morgan Street 725 South Bronough Street Tampa, Florida 33602 Tallahassee, Florida 32304
The Issue At all times relevant to this case, P. J.'s, Inc. held a valid Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) license # 74-473, Series 4-COP, for the premises known as P. J's, located at 400 Broadway, Daytona Beach, Volusia County, Florida. Matthew Danny Packer is the principal shareholder of P. J.'s, Inc. Nikki Ann Conn was born on October 22, 1967. Shortly before her 20th birthday, on October 4, 1987, at approximately 3:00 A.M., Nikki Conn died in a single-vehicle automobile accident. She had just left P. J.'s when the accident occurred. Richard Ballard is a member of a travelling rock music band called "Stalker" that was playing at P. J.'s. He was on a break before the band's final one-hour set at P. J.'s in the early morning of October 4th, when an attractive, visibly inebriated young woman came up and hugged him. When she realized that she had mistaken him for someone else, they struck up a conversation. The girl, whom Ballard later learned was Nikki Conn, relinquished her car keys to him when he expressed concern about her driving. She danced for approximately 30 minutes, then circulated in the crowd, hugging people and talking. After the band's set was finished, she retrieved her keys, explaining that she only wanted to get something from her car. Shortly afterwards, she introduced Ballard to her brother and said he would see that she got home. After the premises closed, Ballard observed her leaving the parking lot in her car with her brother following on a motorcycle. While he did not maintain constant visual contact, Ballard did not see Nikki drinking at P. J.'s. Nikki was a regular patron at P. J.'s. She was observed drinking there on numerous occasions. She and her friends also frequented other bars in the area. P. J.'s closes at 2:30 A.M., later than the other bars, and many of the patrons come for the last set after beginning their evening elsewhere. Richard Goodsite, also known as "Harry", P. J.'s manager, knew Nikki and never checked her identification. He presumed she was 21 years of age. The only person who testified that Nikki was drinking at P. J.'s the evening of October 3, 1987 and early morning of October 4th, was her brother, Michael Conn. As described in Petitioner's written closing argument, at the final hearing "[h]is affect was goofy, his appearance unkempt, and he gave one the impression that his brain had been addled by substances designed to alter one's mental state." While he insisted that Nikki purchased an alcoholic beverage at P. J.'s, Conn was thoroughly confused about the type of beverage and the time that he arrived on the scene. At various times in his testimony he said Nikki purchased a mai tai, a Michelob beer or a Budweiser beer. At one point he also said he bought the beer. (transcript pp. 116, 117)
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a final order be entered, finding Respondent not guilty of the violation charged in the agency's Notice to Show Cause dated January 7, 1988. DONE and RECOMMENDED this 26th day of September, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0880 The following are specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1. Adopted in paragraph #1. 2-3. Adopted in paragraph #2. 4. Rejected as immaterial. 5-6. Adopted in substance in paragraph #4. 7. Adopted in substance in paragraphs #4 and #5. 8-9. Adopted in paragraph #3. Rejected as unsupported by competent evidence. Rejected as immaterial. Rejected as unsupported by competent evidence. 13-15. Rejected as immaterial. 16-17. Adopted in paragraph #4. 18-20. Rejected as cumulative and unnecessary. 21-23. Rejected as unnecessary. Respondent's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #2. Rejected as unsupported by competent evidence. Adopted in paragraph #5. 5-7. Adopted in substance in paragraph #5. 8-12. Rejected as unnecessary. Since the sale was not proven, "due diligence" is immaterial. 13. Rejected as unsupported by competent testimony. Petitioner failed to prove the sale was made, but Respondent did not clearly prove the contrary. Petitioner has the burden of proof and its failure is sufficient to effect the outcome in this proceeding. COPIES FURNISHED: Harry Hooper, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Lawrence J. Nixon, Esquire 444 Seabreeze Blvd., Suite 815 Daytona Beach, Florida 32018 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact On August 24, 1981, Famous Brands Television and Appliances, Inc., entered into a Consent Order with the State Attorney for Palm Beach County, Florida, whereby Famous Brands, together with its principals and officers and agents, agreed to cease and desist from utilizing "bait and switch" practices or be held in contempt of court. At all times material to that litigation, Respondent Bill Lacek was the president of Famous Brands Television and Appliances, Inc. Famous Brands became bankrupt. Lacek knew that his credibility had been affected by his management of Famous Brands. Therefore, when he opened V.T.S. Video, Inc., a similar business, he placed the corporation in the name of his sister Rose Richard. Although ostensibly the president and sole director of V.T.S. Video, Rose Richard's duties were limited to those of a bookkeeper/office manager, the same duties which she had when she worked for her brother at Famous Brands. V.T.S. Video was in the business of advertising and offering for sale video, television and stereo products to the general public. The business was located at 25 North Military Trail, West Palm Beach, Florida. Respondent Bill Lacek formulated, controlled, and directed the acts and practices at V.T.S. Video. He was personally responsible for the purchasing, advertising, marketing, and promoting of the products sold by V.T.S. Video. He personally wrote the advertising, established the sales commission structure for the employees of V.T.S. Video, and attended sales meetings. Lacek solicited customers through newspaper advertising, including advertisements in The Palm Beach Post. Lacek's advertisements included ads for Sony and Hitachi televisions and video cameras. Respondent Lacek's advertisements were not bona fide offers to sell the advertised products. When customers appeared at V.T.S. Video to purchase the advertised Sony or Hitachi products, they were told by V.T.S. Video employees that the Sony or Hitachi products were not available or that the only product available was a "floor model," i.e., a model which has been used at the business for demonstration purposes and which frequently has been damaged and is, therefore, an unattractive product for purchase. Additionally, Lacek and the employees of V.T.S. Video would disparage the advertised products and "switch" the shopper to a different brand, the item which Lacek intended to sell instead of the advertised product. To assure that his salesmen would follow his established "switch and bait" techniques, Lacek set the sales commission structure so that no commission was paid to a salesman who sold the advertised product (if one were available) rather than the product to which the customer was to be switched. Further, the advertisements written by Lacek did not disclose the fact that the advertised item was a floor model. Hopper Electronics in Miami purchases from the factory rebuilt or refurbished products which it then sells to wholesalers. A rebuilt or refurbished product is a product which has been returned to the factory as defective by a customer or a distributor. The factory repairs the item and then re-boxes it for sale. In other words, a rebuilt or refurbished ("RB") product is a used product. Lacek purchased from Hopper on behalf of V.T.S. Video between 3,000 and 5,000 Emerson "RB" products between approximately late 1986 and late 1987. All of the Emerson RB units purchased from Hopper Electronics carried a label saying "RB" on the back of the unit itself and a label saying "RB" on the box containing the unit. Lacek paid Hopper Electronics a total of $780,000 for Emerson RB units during that time period. Although Lacek knew that the RB units were used and not new products, his newspaper ads for those units did not disclose that the products were used or that they were RB products. The Emerson televisions and VCRs purchased from Hopper were sold to the public as new products. Lacek instructed his employees not to disclose that the Emersons were not new products. If a customer questioned the "RB" label appearing on the back of the unit or on the box, the customer was told that the product had been re-boxed or that the product was from Riviera Beach. Respondent Bill Lacek knew that his sales practices were deceptive and that they constituted unfair trade practices, even prior to the institution of this proceeding, since they were the same practices that he was enjoined from utilizing when he signed the Consent Order on behalf of Famous Brands Television and Appliances, Inc., in 1981. Respondent Lacek's practices in the operation of V.T.S. Video have injured the public. Two Assistant Attorneys General represented Petitioner at the final hearing in this cause. Attached to Petitioner's proposed recommended order are affidavits from those attorneys stating that they have spent 220 hours combined in the "investigation and resolution" of this matter. Petitioner has failed to submit a cost affidavit and has therefore waived its statutory right to recover reasonable costs in this action. The Agreed Final Order to Cease and Desist entered into by Petitioner and Respondents V.T.S Video, Inc., and Rose Richard the day before the final hearing in this cause provides that Respondent V.T.S. Video, Inc., will pay to Petitioner the sum of $10,000 in civil penalties plus the sum of $15,000 for attorney's fees in this action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Bill Lacek guilty of the allegations in the Complaint filed against him; Ordering Respondent Bill Lacek to cease and desist from all violations of Chapter 501, Part II, Florida Statutes, and of Chapter 2-9, Florida Administrative Code; Assessing against Respondent Bill Lacek a civil penalty in the amount of $1,500,000; and Denying Petitioner's claim for reimbursement of its attorney's fees and costs against Respondent Bill Lacek. DONE and ENTERED this ,7th day of March, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0505 Petitioner's proposed findings of fact numbered 5, 7-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 16 has been rejected as not being supported by the record in this cause. COPIES FURNISHED: Rhonda G. Lapin, Esquire Andy Itzkovits, Esquire Assistant Attorneys General Suite N921 401 N.W. Second Avenue Miami, Florida 32128 James S. Telepman, Esquire 340 Royal Palm Way Post Office Box 2525 Palm Beach, Florida 33480 (Last known address for Respondent Bill Lacek) Honorable Robert A. Butterworth Attorney General The Capitol Tallahassee, Florida 32399-1050 =================================================================
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
The Issue Did the Respondent, Audie Lewis, violate the Petitioner, City of Cape Coral’s (Cape Coral), End User Computing Policy and ordinances of Cape Coral prohibiting an employee from unauthorized use of equipment and conduct detrimental to the interest of the city? If he did, what discipline is proper?
Findings Of Fact At all times material to this case, Cape Coral employed Mr. Lewis as a business recruitment specialist in the City’s Economic Development Office. Until this matter, Mr. Lewis was a satisfactory employee. He has no history of discipline. The city manager is responsible for deciding whether to terminate the employment of Cape Coral employees who are not supervised by a city department director. Mr. Lewis did not work in an office with a department director. Consequently he was under the supervision of the city manager. Chapter 2, section 2-31.1 of Cape Coral’s Code of Ordinances states that employees may only be disciplined for cause. It also establishes progressive discipline as the usual practice. But chapter 2, section 2-31.2 states: “The city, however, reserves the right to impose even the most severe discipline as an initial measure when circumstances warrant.” Cape Coral’s Administrative Regulation 46 (AR-46) page 3(J) states that every computer user must comply with all applicable policies. It cautions: “Non-compliance may result in disciplinary action up to and including discharge.” On April 20, 2016, the city manager terminated Mr. Lewis’s employment pursuant to chapter 2, section 2-31.3 of the Code of Ordinances and AR-46, the City’s End User Computing Policy. The relevant part of the Code section states: One or more of the following reasons shall constitute cause for disciplinary action: * * * (t) Unauthorized use of city personnel services, supplies, property, facilities, or equipment; * * * (hh) Actions or conduct detrimental to the interests of the city; In pertinent part, AR-46, page 6(E), states: Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email or other form of electronic communication or displayed on or stored in the City’s computers including, but not limited to, messages and material with sexual comments, obscenities, pornography, abusive or degrading language, antisocial behavior, or inappropriate comments concerning race, color, religion, sex, national origin, marital status, or disability. Any message received that contains intimidating, hostile, or offensive material should be reported immediately to management so that appropriate measures can be taken. The End User Computing Policy prohibits use of the internet to view or download material that contains pornography or that is sexually explicit. Mr. Lewis knew of the policy contained in AR-46. The city manager based Mr. Lewis’s termination on “[u]nauthorized use of city personnel services, supplies, property, facilities or equipment,” “[a]ctions or conduct detrimental to the interests of the city,” and “[v]iolation of Administration Regulation 46 End User Computing Policy.” Cape Coral maintains a “zero tolerance” policy for pornography. This is a core part of Cape Coral’s commitment to a culture of professionalism. One reason for the policy is that the proximity of computer users to each other means one user’s display of pornographic images may be viewed by other users. On March 9, 2016, Cape Coral’s “Intrusion Prevent/Detection System” alerted the Information Technology Services Department (ITS) that city computer “cm5465” was connected to a web server possibly associated with adult content. The alert cautioned that the connection may lead to a malware infection and recommended checking the computer to ensure it had not been compromised. The computer was assigned to and used by Mr. Lewis. There is no persuasive evidence that others used the computer. On March 18, 2016, ITS’ network security administrator, Elizabeth Merriken, sent the human resources director a memorandum advising her of the activity. Ms. Merriken attached a report generated by Checkpoint, a security system the city uses to monitor traffic to and from city computers through the firewall. The system also monitors URLs visited and compares them to lists of URLs for suspect sites, such as pornography sites. It reported visits from Mr. Lewis’s computer to 85 suspect sites. The system functions automatically and cannot be manipulated. The report covered traffic for Mr. Lewis’s computer from March 7 through 10, 2016. ITS duplicated the hard drive of Mr. Lewis’s computer in order to analyze it and his internet activity. Ms. Merriken conducted a forensic analysis of the duplicate hard drive. The analysis did not find any evidence of a virus or malware. An analysis using the forensic software program, “Magnet Internet Evidence Finder,” found several pornographic items. It also found that a great deal of history had been deleted shortly after Mr. Lewis learned of the inquiry into his computer use. The analysis found over 100,000 pictures and more than 1,500 videos. During March 8 and 9, 2016, Mr. Lewis’s computer accessed pornographic websites approximately 85 times. ITS contracted with DR Data Security, LLC (Data Security), to conduct further forensic analysis of the hard drive from Mr. Lewis’s computer. Ryan Irving conducted the analysis for Data Security. Mr. Irving conducted his analysis using standard forensic tools. They included SigCheck, Internet Evidence Finder 6.7, Winhex 18.7, IE Cache View, and SANS Investigative Forensic Toolkit 3.0. His analysis corroborated the report from the City’s analysis of March 8 and 9. It also identified similar activity between June and December of 2015. Mr. Irving recovered 54 images from Mr. Lewis’s computer downloaded in December 2015. The images include topless women and nude women, alone and paired in sexually explicit poses. The city manager notified Mr. Lewis of his intent to impose discipline. Cape Coral complied with its due process policies, providing Mr. Lewis notice of the charges against him and the evidence relied upon. It also gave him an opportunity to rebut or explain the information. Mr. Lewis’s statements during a pre-disciplinary interview acknowledging that he might have “accidentally” seen nude images while using Google to search for work-related subjects corroborate the reports of the images and visits to pornographic websites. The testimony that so many images would have been displayed “accidentally” is implausible; there is no expert testimony to support it and no testimony about what search subjects would have generated the images. A brief list of search terms and some of the sites visited demonstrates the implausibility of the “accidental visitation.” They include: Debbie Davis Playboy Centerfold, images.playboy.com, teen pornmovies.ratedxblogs.com, lustfulpics.com, boobieblog.com, glamourcenterfolds.com, and spylove.com, interspersed with URLs for more prosaic sites, such as Amazon and Etsy. After considering all of the information, the city manager issued a “Final Notice of Discipline” letter to Mr. Lewis, terminating his employment, stating the grounds for the termination, and advising Mr. Lewis of his right to seek review. Mr. Lewis repeatedly used his city computer to view websites with pornographic images. This activity was an unauthorized use of city equipment. Mr. Lewis used his city computer to display pornography. Mr. Lewis used his city computer to intentionally view and download electronic material that contains pornography and was sexually explicit from the internet. Mr. Lewis’s activities, summarized in paragraphs 19 through 21, were willful.
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
