Findings Of Fact Respondent has been a firefighter for over 29 years, beginning his career in Brentwood, New York in 1965. He is currently certified in Florida as a firefighter. On January 13, 1972, Respondent entered a plea of guilty to the felony crime of unlawful imprisonment in the State of New York. Thereafter, he was sentenced to five years probation on March 3, 1972. He was discharged from probation on May 15, 1974. On October 10, 1977, the State of New York issued Respondent a "Certificate from Disabilities." The certificate purportedly relieves Respondent from "all disabilities and bars to employment, excluding the right to be eligible for public office." On or about December 30, 1994, the State of Florida, Office of Executive Clemency, certified the restoration of civil rights to Respondent. This certification grants "restoration of civil rights in the State of Florida for any and all felony convictions in any state other than Florida, or in any United States court or military court. . ." Following his legal difficulties in New York, Respondent came to the State of Florida and, in 1973, applied for employment with the St. Cloud Fire Department in St. Cloud, Florida. Concerned about whether his New York legal problems posed a problem, Respondent revealed his criminal history. A determination was made by the employing authority that further revelation of Respondent's criminal record on certification forms was not required. Respondent was informed of this decision. Subsequently, the St. Cloud Fire Department completed and provided certification forms to the State of Florida Office of Fire Marshal which did not reveal Respondent's criminal record, resulting in Respondent's certification on October 23, 1974, as a firefighter. Respondent has maintained in his certification to the present date. Following employment with the St. Cloud Fire Department, Respondent was employed at the Holden Heights Fire Department in Orange County, Florida, and subsequently other fire departments. Later, he worked at one time as an emergency medical technician. He eventually worked for the Deltona Fire District in the unincorporated town of Deltona, Florida. Respondent did not intend to mislead any employer regarding his criminal past. Further, no certification form was ever submitted by Respondent to Petitioner in order to obtain certification which denied his criminal past until February 27, 1977, when he executed a document entitled "Fire Fighters Standards Counsel Compliance of New Employees, FFSC Form #C-1." In response to the question on the form requesting information regarding conviction of a felony or a misdemeanor involving moral turpitude, Respondent relied on the assurances he had received from the St. Cloud Fire Department and checked the "no" box. This document was then signed and submitted by Respondent not to obtain certification, but to advise the State Fire College in Ocala, Florida of his status as a volunteer with the Holden Heights Fire Department. The certification also served to maintain Respondent's certification since, at the time, he was not employed as a firefighter. At the time of Respondent's initial certification, Florida law prohibited certification of applicants with a felony conviction or a misdemeanor involving moral turpitude. Petitioner did not, however, conduct independent background checks of applicants at that time, relying instead upon the submitting authorities for verification of this information. Petitioner became aware of Respondent's criminal past in February of 1994, when Respondent was employed in Deltona, Florida, and had become active in the issue of incorporation for the town. A political opponent of Respondent named Robert C. Hoffman apprised Petitioner of Respondent's past. Verification by Petitioner followed, culminating in the issuance of the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaint. DONE and ENTERED this 26th day of April, 1995, at Tallahassee, Florida. DON W. DAVIS, 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 26th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-2 Accepted. 3. Rejected, subordinate. 4.-11. Accepted, but not verbatim. 12. Rejected, allegations are not proof, relevance. 13.-17. Accepted, not verbatim. Rejected, no factual basis. Rejected, subordinate. Respondent's Proposed Findings 1.-8. Accepted, not verbatim. 9. Rejected, relevance. 10.-14. Accepted, not verbatim. 15. Rejected, relevance. 16.-18. Accepted, not verbatim. COPIES FURNISHED: Michael K. McCormick, Esq. Division of Legal Services 612 Larson Building Tallahassee, FL 32399-0333 Lawrence G. Walters, Esq. Doran, Walters et al. P. O. Drawer 15110 Daytona Beach, FL 32115 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-2152 Dan Sumner Acting General Counsel Dept. of Insurance The Capitol, PL-11 Tallahassee, FL 32399-2152
The Issue Whether Petitioner's application for certification should be denied for the reasons set forth in the Amended Notice of Reasons.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is presently 25 years of age. His date of birth is July 29, 1974. Petitioner had a troubled youth; however, since the August 6, 1994, incident (described below) that is the focus of the instant case, he has matured and gained a reputation of being a responsible adult member of his community. On Saturday, August 6, 1994, shortly after his twentieth birthday, at approximately 5:55 p.m., Petitioner was driving north on Andrews Avenue in downtown Fort Lauderdale. He had just finished running errands for his father in the downtown area and was on his way home. 5/ There were no passengers in his vehicle. As Petitioner approached the intersection of North Andrews Avenue and Second Street, there was a woman standing on the sidewalk on the northeast corner of the intersection, facing south, who attracted his attention. Unbeknownst to Petitioner, the woman, Joyce Fleming was a police officer employed by the Fort Lauderdale Police Department. Officer Fleming was participating in an undercover operation designed to "combat street level prostitution activity." Her role in the operation was to pose as a street prostitute. When Petitioner stopped for a red light at the intersection of North Andrews Avenue and Second Street, he made eye contact with Officer Fleming, who waved at him and pointed him toward a nearby parking garage, which was underneath an office building. Petitioner pulled into the parking garage and parked his car, head first, facing a concrete wall and beside concrete pilings. Officer Fleming, who was wearing a wire, then walked up to the driver's side of Petitioner's vehicle and started talking to Petitioner. The conversation she had with Petitioner was tape recorded 6/ and monitored by backup officers (who were in the vicinity). Officer Fleming began her conversation with Petitioner by complaining that a certain police officer, who, she told Petitioner, had been across the street from where she had been standing on North Andrews Avenue, was always "bothering" her. It was because of this police officer, she explained to Petitioner, that she had not "want[ed] to get in over there." After being told about the police officer, Petitioner asked Officer Fleming, "Why don't I meet you somewhere else?" To allay Petitioner's concerns, Officer Fleming told him that the police officer was no longer across the street and that therefore she could "get in" his vehicle. Petitioner, however, indicated to Officer Fleming that he was still "nervous about it," to which Officer Fleming replied, "If you're nervous, you can go on." Petitioner, though, did not "go on." He chose to stay. 7/ Officer Fleming then asked Petitioner what he "want[ed] to do." Petitioner answered, "I don't know, what do you want?" Officer Fleming's response was, "Well, I don't care; just tell me what you want to do and I'll tell you how much." Petitioner told Officer Fleming (whom he believed to be a prostitute) that he was interested in a "blow job." 8/ He and Officer Fleming then haggled over the price. Petitioner ultimately agreed to pay Officer Fleming $10.00, 9/ after which the following exchange took place between Petitioner and Officer Fleming: Officer Fleming: Okay. We can do that then. Petitioner: Why don't I meet you somewhere else? Officer Fleming: You don't want to do it here? Petitioner: Well, I don't want a cop pulling up. It was at this point in time that back up officers arrived on the scene and arrested Petitioner for "soliciting for prostitution" in violation of Fort Lauderdale Municipal Ordinance 16-1. At no time did Petitioner actually pay Officer Fleming any money; nor was there ever any physical contact, sexual or otherwise, between Petitioner and Officer Fleming. (Petitioner remained in his vehicle, while Officer Fleming stood alongside the vehicle on the driver's side, throughout their conversation in the parking garage.) The charge that Petitioner had violated Fort Lauderdale Municipal Ordinance 16-1 10/ by agreeing to pay Officer Fleming for oral sex was filed in Broward County Court, and it was docketed as Case No. 94-15421MO10A. On March 23, 1995, Petitioner filed a Sworn Motion to Dismiss in Case No. 94-15421MO10A. Appended to the motion was a copy of a transcript that had been prepared of the tape recording of the conversation Petitioner had had with Officer Fleming immediately prior to his arrest. The transcript, however, did not accurately and completely reflect the contents of the tape recording. It omitted Petitioner's affirmative response when he was asked by Officer Fleming, during price negotiations, whether he would be agreeable to paying $10.00 for her services. 11/ Pursuant to an agreement with the Municipal Prosecutor, Petitioner entered a Pre-Trial Intervention Program on or about July 5, 1995. Petitioner successfully completed the Pre-Trial Intervention Program. Consequently, on October 23, 1995, prior to any ruling having been made on Petitioner's Sworn Motion to Dismiss, the Municipal Prosecutor issued a Nolle Prosequi in Case No. 94-15421MO10A announcing that the "City of Fort Lauderdale decline[d] prosecution on all municipal violations against [Petitioner] arising out of [his] arrest on [August 6, 1994]." Petitioner graduated from the University of South Florida in December of 1997 with a B.A. degree in English. On or about February 17, 1998, Petitioner submitted to the Department of Education (Department) an Application for Florida Educator's Certificate seeking an "initial two-year nonrenewable temporary" teaching certificate. On the application, he acknowledged his August 6, 1994, arrest. From August of 1998 to January of 1999, Petitioner was employed as a tenth-grade English teacher at MacArthur High School in Hollywood, Florida (which, at the time, had an enrollment of 2,200 students). The principal of the school was (and still is) Beverly James. In Ms. James' opinion, Petitioner did a "very good job" while at the school, and she "would not hesitate" to rehire him if he received his teaching certification. In addition to his classroom responsibilities at MacArthur High School, Petitioner also served as the assistant coach of the school's wrestling team. The head coach of the team was Michael Zarra. In Mr. Zarra's opinion, Petitioner did a "good job coaching," and he would not "have any hesitation to have [Petitioner] back as an assistant wrestling coach." As evidenced by his job performance at MacArthur High School, by engaging in the conduct for which he was arrested on August 6, 1994, Petitioner has not impaired his ability to be an effective teacher. The incident, which took place when Petitioner was a 20-year old college student, four years before he began teaching at the school, was not widely publicized and it has not adversely affected his reputation in the community. By letter dated December 28, 1998, Petitioner was notified that his Application for Florida Educator's Certificate was being denied for the reasons set forth in the Notice of Reasons that accompanied the letter. Shortly thereafter, Ms. James terminated Petitioner's employment at MacArthur High School. She did so only because she was told she had to inasmuch as Petitioner "would not be certified." On or about March 17, 1999, Petitioner was provided with an Amended Notice of Reasons reflecting that the denial of his application was based solely upon the August 6, 1994, incident involving Officer Fleming. Petitioner subsequently sought to reopen Broward County Court Case No. 94-15421MO10A. His efforts were successful. On June 23, 1999, Broward County Court Judge Joel T. Lazarus issued a Final Order of Dismissal in the case, which provided as follows: CAME ON TO BE HEARD on June 21, 1999 Defendant's Motion to Vacate and Set Aside Disposition and Defendant's Sworn Motion to Dismiss and the Court having heard the arguments of counsel and being further advised, it is hereby ORDERED AND ADJUDGED that Defendant's Motion to Vacate and Set Aside Disposition be and the same is hereby GRANTED. IT IS FURTHER ORDERED AND ADJUDGED that, as to Defendant's Sworn Motion to Dismiss and the Court's consideration of the matters before it, this Court makes a determination that no material issue of fact that sustains the criminal charges against this Defendant exist[s] and that the Defendant is entitled to dismissal as a matter or law. IT IS FURTHER ORDERED AND ADJUDGED that Defendant's Sworn Motion to Dismiss be and same is hereby GRANTED and the Defendant is herewith discharged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order reversing the Department of Education's preliminary denial of Petitioner's Application for Florida Educator's Certificate and directing the Department to issue, unconditionally, the "initial two-year nonrenewable temporary" teaching certificate sought by Petitioner. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000.
Findings Of Fact On September 14, 1977, a jury in Louisiana found Petitioner guilty of armed robbery of a bank on June 9, 1977. On December 22, 1977, the court sentenced Petitioner to 65 years at hard labor. After initial incarceration at the county jail, from which he escaped twice, Petitioner was sent to the state prison in Angola. The State of Louisiana added two years to his sentence, to run concurrently with the original sentence. After serving over 18 years, Petitioner was released from Angola on December 14, 1995. He received a commutation of sentence from Governor Edwin Edwards on December 12, 1995. Petitioner received 40 disciplinary reports the first three years at Angola, seven the next two to three years, and none the last nine years. While at Angola, Petitioner earned his GED and a two-year computer tech degree. He took correspondence courses from Louisiana State University and performed quite well. He paid for the college coursework by working in the prison fields. Seeing prison inmates dying, Petitioner suggested to the prison administration that inmates be trained in CPR. The prison administration agreed to allow six inmates to be trained in CPR so they could train the remainder of the inmates. Petitioner was one of the six inmates so trained, and he later trained persons outside the prison in CPR. After receiving counseling himself, Petitioner served as the chairman of the substance abuse and AA programs at Angola. Once an abuser of drugs and alcohol, Petitioner has not drunk or used drugs since being released from Angola, nor, presumably, well before his release. After being released from prison, Petitioner, with the permission of Louisiana and Florida authorities, returned to Fort Myers, which is where he grew up. He has just married a woman he has known since they were in high school. On returning to Fort Myers, Petitioner submitted 50-60 applications for jobs. He accepts without rancor that his criminal background has made it difficult to find employment. However, he eventually found a job as a painter and began work on February 12, 1996. He later took a nighttime job at a dry cleaners, but quit when he began working overtime as a painter. He has not yet been able to attend school due to financial reasons. However, Petitioner wants to work with the Ruth Cooper Center as a mental health technician. The Ruth Cooper Center would make available for him various educational opportunities, possibly including in the area of Petitioner's real interest of computer programming. Petitioner is highly intelligent. Petitioner is 41 years old and was in prison since he was 23 years old. He argues persuasively that, given the amount of time that he has been in prison, he should be allowed to demonstrate his rehabilitation through the leadership roles that he occupied while still in prison. After a rocky start, Petitioner prepared himself well in prison to demonstrate rehabilitation. He took advantage of all available opportunities and created additional opportunities for himself and others. However, clear and convincing evidence of rehabilitation requires, given the seriousness of the original crime, that Petitioner demonstrate for more than five months that he is capable of living productively outside of a prison setting. He has shown that it is more likely than not that he is entitled to the exemption; in a few more months of productive life, he should be able to show by clear and convincing evidence that he is entitled to the exemption.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying Petitioner an exemption without prejudice to reapplying at anytime. ENTERED on July 3, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 3, 1996. COPIES FURNISHED: Deborah Studybaker District Screening Attorney Department of Health and Rehabilitative Services Post Office Box 60085 Fort Myers, Florida 33906 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Culton Blue 3324 Armstrong Court Fort Myers, Florida 33916 Culton Blue 4822 Dueriamae Drive Fort Myers, Florida 33908
Findings Of Fact Petitioner is an Instructor of Social Studies presently teaching History of Law and Law and Society at Coral Gables Senior High School in Dade County, Florida. Petitioner has been an Instructor of Social Studies at Coral Gables High School since August, 1963. Petitioner received a Bachelor of Arts degree from the University of Miami in 1963. Petitioner was awarded a Juris Doctor degree from the University of Miami College of Law in May, 1974. Prior to July 1, 1974, the Petitioner had been certified as a Rank III teacher in the elementary and secondary schools. On August 20, 1974, the Respondent issued a Rank II Teacher's Certificate to the Petitioner. The effective date of the certificate was July 1, 1974. Petitioner was certified to teach social studies in secondary schools, English in junior high school, and to teach in the junior colleges. On October 25, 1974, the Respondent issued a Rank I teacher's certificate for teaching in junior college to the Petitioner. In July and August, 1975, the Petitioner sought certification as a Rank I teacher. This request was denied by the Respondent by letter dated September 2, 1975. (See: Petitioner's Exhibit F). This action followed the denial of Rank I status. A Juris Doctor degree is the initial legal degree that is available. The Juris Doctor degree is considered the terminal professional legal degree in that no additional degrees are necessary in order to engage in the practice of law. Advanced legal degrees are available at some, but not all, law schools. These degrees are an L.L.M., or Master of Law degree, and a J.S.D. or S.J.D., or Doctor of Juridical Science degree. The J.D., or Juris Doctor degree, is of fairly recent vintage. The initial legal degree at most law schools was, until the past ten or twenty years, designated an L.L.B., or Bachelor of Law degree. The J.D. designation has become popular due to added prestige add recognition that it provides. A J.D. degree is not in any way substantively different from an L.L.B. degree. A J.D. degree is in fact a Bachelor's degree in the specialized field of law.
The Issue What relief should the Florida Commission on Human Relations provide Petitioner to remedy the unlawful employment practice that Respondent admits that it committed by refusing to further consider Petitioner's application for employment as a correctional officer once it learned that Petitioner is an insulin-dependent diabetic?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner's Employment at the South Florida Reception Center Petitioner previously worked full-time as a Correctional Officer I at the State of Florida Department of Corrections' (DOC's) South Florida Reception Center, a maximum security facility that houses convicted felons. Petitioner and his coworkers at times were asked to work double shifts. On several occasions, Petitioner was threatened with disciplinary action when he refused to work a second shift immediately following the completion of his regularly assigned shift. Prior to the expiration of his probationary period, Petitioner was advised that he was going to be fired. Petitioner requested, and was granted permission by the Superintendent of the facility, the opportunity to resign in lieu of termination. Petitioner resigned his position effective June 27, 1989. Petitioner's Application for Employment with Respondent In October of 1988, while still employed by DOC, Petitioner applied for a Correctional Officer I position with Respondent. Respondent's official job description for the position describes the nature of the work performed by Correctional Officer I's as follows: This is routine security work in maintaining order and discipline among prisoners held in County correctional facilities. Employees in this class are responsible for receiving and controlling prisoners, preventing escapes and enforcing departmental rules and regulations on an assigned shift at a County correctional facility. Duties include maintaining various records on prisoners, supervising work details, transporting prisoners to a variety of medical or correctional institutions, and ensuring the proper discharge of prisoners. Work occasionally involves an element of personal danger during emergencies and in controlling potentially violent prisoners. Duties are performed in accordance with established departmental regulations and security procedures. Supervision is received from a superior officer who reviews work for compliance with established rules and regulations. These duties are similar to those performed by correctional officers who work at the South Florida Reception Center. There was a delay in the processing of Petitioner's application for employment. On April 12, 1990, Iliana O. Garcia, a Personnel Specialist 2 with Respondent, sent Petitioner a letter, the body of which read as follows: We wish to take this opportunity to thank you for placing your application for the position of Correctional Officer 1 with our Department. The time and effort you devoted to your pursuit of this position is sincerely appreciated, however, at the present time, we regret that we are unable to consider your application further. Many exceptional candidates are seeking limited number of positions and this creates a very competitive situation. Please be assured that our decision in your case was based on very careful consideration of your application and qualifications in direct comparison with all others seeking the position and was not a judgment arrived at lightly. Thank you again for your demonstrated interest in our Department, and we wish you success in your endeavors. On May 9, 1990, Louvenia Lee, the Commander of Respondent's Human Resources Bureau, sent Respondent a follow-up letter explaining in greater detail why Respondent was no longer being considered for the position for which he had applied: On February 26, 1990 you were scheduled for a physical examination at Mt. Sinai Medical Center. This exam was another step in the hiring process for a Correctional Officer. However, on the basis of the physical exam, the results were disqualifying. Therefore, your application with the Corrections and Rehabilitation Department was discontinued. The disqualifying results are in accordance with the physical standards set forth in the California Commission on Peace Officer Standards and Training, Chapter IX-1. These standards are utilized by other law enforcement agencies in Metropolitan Dade County. Thank you again for your demonstrated interest in our Department and we wish you success in your endeavors. If I can be of further assistance, please contact me at 547-7052. The results of the physical examination that Petitioner had taken were "disqualifying" because they had revealed that Petitioner was an insulin- dependent diabetic. Lost Earnings Had Petitioner been selected to fill the position for which he had applied, he would have had to have first undergone four months of academy training, starting in late July or early August of 1990, before assuming the duties of a Correctional Officer I. He would have received a stipend of $400 for each month that he was in training. Had Petitioner successfully completed his academy training, he would have been placed on the payroll as a Correctional Officer I on December 3, 1990. Had Petitioner remained on the payroll as a Correctional Officer I from December 3, 1990, to January 3, 1993, 3/ he would have earned a total of $54,142.22 ($47,367.16 for the pay periods reflected on Petitioner's Exhibit 7; $804.83 for the two bonus payments reflected on Petitioner's Exhibit 7; $932.86 for the January 21, 1991, through February 3, 1993, pay period; $972.45 for the March 30, 1992, through April 12, 1992, pay period; and $4,064.92 for the four pay periods immediately following the October 26, 1992, through November 8, 1992, pay period). Mitigation At the time he learned that he was no longer being considered by Respondent as a candidate to fill the Correctional Officer I position for which he had applied, Petitioner had applications for employment pending with two other prospective employers, the City of Hollywood and the Metro Dade Police Department. Both applications were for law enforcement officer positions. In August or September of 1990, Petitioner was informed that neither the City of Hollywood nor the Metro Dade Police Department would be offering him a position. The City of Hollywood advised him that the position for hich he had applied had been filled by another of the over 100 applicants for the position. The Metro Dade Police Department told Petitioner that it could not hire him because he was an insulin-dependent diabetic. Some time shortly after receiving his rejection notice from Respondent, Petitioner applied for a correctional officer position with the Broward Sheriff's Office. He did not get the position. The explanation that he was given was that he had failed the polygraph test he had taken. At the outset of the 1990-1991 school year Petitioner began working as a substitute teacher for the Dade County School Board. He continued working as a substitute teacher during the remainder of the 1990-1991 school year, as well as the following school year. The work was sporadic. Frequently, he would not know until the morning of his teaching assignment that he had the opportunity to substitute teach that day. 25. In 1990, 1991 and 1992, Petitioner earned $694.00, $2,212.50 and $2,360.00, respectively, working as a substitute teacher for the Dade County School Board. In 1992, Petitioner also worked for Publix Super Markets, Inc. (hereinafter referred to as "Publix). His last day of work for Publix was August 14, 1992. Petitioner earned $2,063.78 working for Publix in 1992. From the date he was informed that Respondent had rejected him for employment until January 3, 1990 (hereinafter referred to as the "back pay period"), Petitioner was not otherwise gainfully employed, nor did he, with the exception noted above, seek other gainful employment. During the back pay period, there were various advertised openings for correctional officers at the South Florida Reception Center (hereinafter referred to as the "Center"). These positions offered considerably less pay than Petitioner would have received had be been hired by Respondent. Furthermore, the working conditions at the Center were far inferior to those he would have experienced working for Respondent as Correctional Officer I. Petitioner did not apply for any of these advertised positions because he reasonably believed that to do so would be an exercise in futility given that he had been constructively discharged in June of 1989, from a similar position at the Center. Attorney's Fees and Costs On March 25, 1992, after the Executive Director of the Commission had issued a Notice of Determination: Cause and conciliation efforts had failed, Petitioner executed the following written agreement to retain the law firm of Simon, Schindler and Sandberg, P.A., to represent him in the instant matter: I, the undersigned, do hereby retain and employ the law firm of: SIMON, SCHINDLER & SANDBERG, P.A. 1492 South Miami Avenue Miami, Florida 33130 as my attorneys to represent me, DONALD C. FERRARO, in the petition now pending before the Florida Commission on Human Relations. I fully understand that the fee is based upon an hourly rate of $250.00, which I am obligating myself to pay. I also agree to pay my said attorneys the sum of $100.00 for out-of-pocket expenses. You are authorized to pay or incur liability for all expenses . . . If bills are not paid when due, or a mutually agreeable payment schedule is not made and adhered to, I agree that my attorneys may withdraw as my counsel in any proceeding in which they represent me. Also I agree to bear the cost of collection, including a reasonable attorney's fees, and all other costs. I understand that I will be billed periodically both as to expenses and attorney's fees, and fully agree to pay said bill promptly upon receipt of same. In addition to any other lien contemplated hereunder, we are given a lien on the claim or cause of action, on the sum recovered by way of settlement, and on any judgment that may be recovered, for fees as well as any fund we may have advanced on your behalf for costs in connection with the cause of action. You agree that we have all general, possessory, or retaining liens, and all special or charging liens, known to the common law. If we use the services of an attorney to enforce the terms of this agreement, you agree to pay, in addition to all other sums due us, a reasonable attorney's fee for said enforcement. I further agree that you shall have the right to withdraw from my case: (a) If I do not make the required payments pursuant to this agreement; (b) if I have misrepresented or failed to disclose material facts to you; or (c) if I fail to follow your advice. In any of the foregoing events, I agree to execute any such documents permitting you to withdraw. The Attorney is an officer of the court and is bound by the rules regulating the Florida Bar. The client acknowledges and understands that while an attorney accepts this employment and promises to render professional legal services to the best of his ability during the continuation of this employment, that the attorney makes no warranties, representations or guarantees regarding the favorable outcome, result or successful termination of the representation and that this Retainer Agreement is not "contingent" thereon. The client agrees to fully cooperate with the attorney; to do nothing which would compromise the attorney's professional ethics; and not to request or require the attorney to do anything in violation of the Rules of Professional Conduct. If the client has misrepresented or failed to disclose any material facts, refuses to follow the attorney's advice, or fails to be available as necessary for preparation, conferences, depositions, hearings or other court proceedings, the attorney may withdraw from representation with leave of court. I acknowledge that you have made no representations or guarantees concerning the outcome of this case. I agree to the above terms and conditions of this Retainer Agreement and further acknowledge that I have received a copy thereof. Pursuant to this retainer agreement, the law firm of Simon, Schindler and Sandberg, P.A., (hereinafter referred to as the "Firm") provided Petitioner with legal representation in this matter. Roger J. Schindler, Esquire, a name partner in the Firm, was the most senior of the Firm's attorneys who worked on Petitioner's case. Schindler is a Florida-licensed attorney who has been practicing law in this state since the spring of 1970. He has litigated numerous civil rights actions. Schindler's hourly fee is $250.00. Through November 11, 1992, Schindler had reasonably spent 49.00 hours performing various tasks in connection with the instant case for which Petitioner has been billed $12,200.00 based upon a reasonable hourly fee of $250.00. Through November 11, 1992, Joe Constant, a Florida-licensed attorney and one of the Firm's associates, had reasonably spent 16.20 hours performing various tasks in connection with the instant case for which Petitioner has been billed $2,673.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, another of the Firm's associate attorneys had reasonably spent one hour working on legal research done in connection with the instant case for which Petitioner has been billed $165.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, a law clerk working for the Firm had reasonably spent 11.80 hours performing research-related tasks in connection with the instant case for which Petitioner has been billed $885.00 based upon a reasonable hourly fee of $75.00. The Firm has also billed Petitioner a total of $368.22 for costs reasonably incurred through November 11, 1992, in connection with the instant case. Through November 11, 1992, the Firm had billed Petitioner a total of $16,391.22 ($15,923.00 for attorney's fees and $368.22 for costs), but had not received any payments from Petitioner, notwithstanding that, under the retainer agreement, he was responsible to pay the Firm this entire amount regardless of the outcome of the instant case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order (1) finding that Respondent committed the unlawful employment practice alleged in Petitioner's Petition for Relief, (2) prohibiting the practice, (3) awarding Petitioner back pay in the amount of $55,742.22, together with prejudgment interest thereon at the statutory rate of 12% per annum, (4) awarding Petitioner reasonable prehearing attorney's fees and litigation costs in the amount of $16,391.22 ($15,923.00 for fees and $368.22 for costs), and (5) awarding Petitioner reasonable attorney's fees and litigation costs for work performed, and costs incurred, by the Firm in connection with this case after November 11, 1992, in an amount to be determined by agreement of the parties or, in the absence of such agreement, by subsequent Commission order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1993. STUART M. LERNER 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 26th day of February, 1993.
The Issue Whether Respondent, Carl C. Brown (Respondent), failed to maintain good moral character required of law enforcement officers by engaging in the acts alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on January 27, 2017, and issued Law Enforcement Certification Number 340839. The Department is the state agency responsible for enforcing standards applicable to law enforcement certificates, pursuant to section 943.12 and chapter 120. Respondent had notice of the time and date of the hearing, but did not attend or present any evidence. Respondent was employed by the Quincy Police Department from April 3, 2017, to July 28, 2017. During Respondent's employment with the Quincy Police Department, Respondent worked in the W.A. Woodham Justice Center. The W.A. Woodham Justice Center is a public building that, during Respondent's employment, housed both the Gadsden County Sheriff's Office and the Quincy Police Department. At the time, the ground floor of the W.A. Woodham Justice Center was designated for the Gadsden County Sheriff's Office. The floor above the ground floor was designated for the Quincy Police Department. Marketa Powell (Inmate Powell or Ms. Powell) was an inmate at the Gadsden County Jail during the months of June and July 2017. During that time, she held trustee status as an inmate and was assigned to work at the W.A. Woodham Justice Center. Respondent did not know Inmate Powell prior to June 2017. Respondent first came into contact with Inmate Powell in June 2017, at the W.A. Woodham Justice Center. When they met, Respondent struck up a conversation with Ms. Powell and gave her his personal cell phone number so that she could contact him. Respondent also met with Inmate Powell at the Gadsden County Jail during his personal time. In June 2017, Respondent asked Inmate Powell to meet him in the men’s restroom on the ground floor of the W.A. Woodham Justice Center. Sometime later, Inmate Powell met Respondent in the men's restroom and performed oral sex on Respondent. On a separate, later occasion that same month, Respondent again asked Inmate Powell to meet him in the men’s restroom of the W.A. Woodham Justice Center. Once again, Inmate Powell met Respondent in the men’s restroom. On that occasion, she and Respondent had sexual intercourse and Inmate Powell performed oral sex on Respondent. Rachel McPherson, custodian at the W.A. Woodham Justice Center, was the supervisor in charge of Inmate Powell. Ms. McPherson witnessed Respondent fraternizing with Ms. Powell several times during June 2017. One day in June 2017, while Ms. McPherson was searching for Inmate Powell, she saw Respondent between the men’s and women’s restrooms of the W.A. Woodham Justice Center. Ms. McPherson entered the men’s restroom and observed someone’s feet in a stall of the men’s restroom. Ms. McPherson called out, but the person in the stall failed to respond. Ms. McPherson then exited the men’s restroom and asked Sheriff’s Assistant Betty Carter to watch the men’s restroom to see who exited. Ms. Carter's office was no more than 30 feet from the men’s restroom. Later that day, Ms. Carter witnessed Inmate Powell exiting the men’s restroom. The incident was reported and an internal investigation of Respondent was initiated. During the internal investigation, Inmate Powell was initially reluctant to come forward and tell authorities about her sexual encounters with Respondent because of fear of further criminal penalties. However, Ms. Powell eventually admitted her contacts with Respondent and, during the final hearing, provided credible, clear, and convincing evidence that the encounters with Respondent in the men's restroom, while she was an inmate serving as a trustee at the W.A. Woodham Justice Center, had occurred. Ms. Powell also provided credible testimony that Respondent also gave her money and visited her at the jail during his personal time. During his internal affairs interview with Lieutenant Larry Gilyard, Respondent admitted that he met alone with Inmate Powell in a restroom at the W.A. Woodham Justice Center while he was employed by the Quincy Police Department. As a result of the investigation, Respondent was dismissed from his employment with the Quincy Police Department on July 28, 2017. After Ms. Powell’s release from incarceration, and while she was still on probation, Respondent maintained contact with her, engaged in sexual intercourse with her, and exchanged text messages. While still on probation, Ms. Powell contacted Respondent and apologized to him for his losing his job. Respondent, through texts, admonished Ms. Powell stating, “what was the reason for saying it”; “you probably could have easily been like nothing happened”; and “you could have refused to give a . . . .” Not once in the pages of text messages did Respondent deny the allegations or say that Ms. Powell was being dishonest with the authorities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Department of Law Enforcement finding that Respondent failed to maintain good moral character as required by law and revoking Respondent’s law enforcement certification. DONE AND ENTERED this 25th day of March, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2019.
The Issue This case concerns the administrative prosecution by the Petitioner against the Respondent through an Administrative Complaint and amendment to that Administrative Complaint. The original statement in the Administrative Complaint accuses the Respondent of purchasing a forged transcript, which transcript indicated that the Respondent had completed requirements for a masters degree from the Florida A & M University and had received that degree, and that the Respondent in turn used the forged transcript to fraudulently receive a certification from the Florida Department of Education, Office of Certification, to the effect that the Respondent purportedly violate Section 231.28, Florida Statutes, in particular, for reason that the Respondent has committed an act of gross immorality, used fraudulent means to secure a teacher's certificate, and engaged in conduct which seriously reduces her effectiveness. The Respondent is also accused of violating Section 231.09, Florida Statutes, for failing to provide a proper example for students and to have violated Chapter 6B-1, Florida Administrative Code, by not practicing her profession at the highest ethical standard. By amendment to the Administrative Complaint, the Respondent is also accused of violating Subsection 231.28(1), Florida Statutes, by being charged with uttering a forgery and for that charge being adjudicated guilty of a felony and placed on three years' probation, due to her plea of nolo contendere to felony charges. Adjudication in this matter allegedly was made on August 3, 1981.
Findings Of Fact The Petitioner, by Administrative Complaint and the amendment to that complaint, attempts to discipline the Respondent by action in revocation or suspension of the teacher's certificate of Diane E. Ladson, or other appropriate action. The Respondent having been afforded the opportunity for a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, availed herself of that opportunity and the formal hearing was conducted on September 10, 1981. At present the Respondent is the holder of a teacher's certificate issued by the State of Florida, Department of Education, No. 377074, issued on July 30, 1979, and valid through June 30, 1979. The actual transcript of credit hours earned from Florida A & M University may be found in Petitioner's Exhibit No. 4. At present, the Respondent is an employee of the Duval County, Florida, School System. She was hired to work as a teacher in Duval County on August 14, 1975. On August 14, 1979, she presented the masters level certificate issued by the Florida Department of Education to the officials in Duval County, which was an upgrade in her status and, through the presentation of this credentials change, it ostensibly entitled her to approximately $1,000.00 additional compensation. This was the amount to be paid in the 1979-80 school year and through August 1980 of the 1980-81 school year, and is a pay differential between this teacher at the masters level rank of certification as contrasted with the teacher at a bachelors level of certification employed by the Duval County School System. The exact differential is that between $9,725 and $10,550 per year. Ladson in fact received $998.25 additional compensation, which she had not repaid. Since the time of her involvement in the purchase of an illegal graduate degree, the Respondent has been charged in the Circuit Court in Leon County, Florida, under the provisions of Section 831.02, Florida Statutes, with uttering a forgery, a third degree felony and entered a nolo contendere plea to that offense. For this plea, the defendant was adjudged guilty and placed on probation for a period of three (3) years. The terms of disposition of the Respondent's case may be found in Petitioner's Exhibit No. 17, admitted into evidence, which is a copy of the judgment of guilt and placement of the defendant on probation. At present, the Respondent is being used as a substitute teacher in the Duval County School System and as an employee in the library services of that school system. Her most recent evaluation, as well as those evaluations made of her performance during the pendency of her service with the Duval County School System, has shown her to be a satisfactory employee.
Recommendation Based upon the foregoing, it is RECOMMENDED that the license rights of the Respondent to teach in the State of Florida and the associated certificate No. 377074 be permanently revoked for the violations as established herein.1 DONE AND ENTERED this 16th day of October 1981 in Tallahassee, Florida. CHARLES C. ADAMS 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 16th day of October 1981.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint, as amended, filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been the holder of a Class "B" security agency license, number B 0001057. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of grand theft, a third-degree felony, in violation of Section 812.014(1)(a), Florida Statutes. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of perjury not in an official proceeding, a first-degree misdemeanor, in violation of Section 837.012, Florida Statutes. In the foregoing proceeding, the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, placed Respondent on probation for terms of five years and one year to run concurrently, and ordered Respondent to pay restitution in the amount of $15,783.67 to the victim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint, as amended, and revoking Respondent's Class "B" security agency license number B 0001057. DONE and ENTERED this 21st day of February, 1996, at 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 95-5217 Petitioner's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Mr. Daniel D. Goldberg 2812 Southwest 65th Avenue Miramar, Florida 33023 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact The State of Florida, acting through Petitioner, certified Respondent as a correctional officer and, on February 17, 1988, issued to her Certificate number 03-87-502-08. On September 21, 1987, Respondent began employment with the Florida Department of Corrections as a correctional officer at Broward Correctional Institution (BCI). On May 16, 1988, Respondent's employment with BCI was terminated. Since Respondent was still in the probationary period with BCI, it was not necessary for BCI to provide an official reason for the termination of Respondent's employment. The unofficial reason for the termination was that Respondent had failed to report to work. BCI routinely uses an attendance and leave report form covering two calendar weeks as the basis for the issuance of salary warrants and for the accruement of leave and other benefits associated with state employment. These Attendance and Leave forms have a space for the hours worked during each day of the two week period, a space for the number of hours of authorized leave taken for each scheduled work day of the two week period, a space for scheduled days off, and a place to insert the code number for the type of leave taken. Among the several types of leave available to an employee (assuming that the employee had accrued leave available) were "annual leave", "family sick leave", "sick leave", and "unauthorized leave without pay." These leave forms are usually kept in the Lieutenants' complex in books according to shifts. Each correctional officer normally completes his or her form at the end of the pay period. It is not unusual for a correctional officer to sign and to postdate the leave form if the officer does not anticipate being at work on the last day of the pay period. Thursday, April 14, 1988, was the end of a two week pay period. On April 14, 1988, Respondent received a telephone call from her husband and was told by her husband that their two year old child, who had a history of extended illnesses, was sick and would require hospitalization. Respondent informed her supervisor, Lieutenant Bernstein of her child's illness. At that time, Respondent did not know how much time she would miss because of the child's illness. Lieutenant Bernstein told Respondent to be sure to sign her Attendance and Leave Form before she left. The form Lieutenant Bernstein referred to was for the period that ended April 14, 1988. Respondent misunderstood his instructions and thought he meant that she should sign the form for the upcoming two week pay period. For the two week period beginning Friday, April 15, 1988, Respondent was scheduled to work an 8-hour shift at BCI on each of the following days April 15, 16, 17, 18, 21, 22, 23, 24, 25, and 28, and was scheduled to be off April 19, 20, 26, and 27. Respondent did not report for work at BCI at any time during this two week period. On April 14, 1988, Respondent partially completed and signed an attendance and leave form covering the period April 15-28, 1988. She signed the form on April 14, 1988, but she wrote the date April 28, 1988, next to her signature. Her signature was directly underneath the following declaration: I HEREBY CERTIFY THAT I HAVE REVIEWED THIS REPORT AND THAT IT REPRESENTS A TRUE AND CORRECT RECORD OF THE REGULAR HOURS WORKED, AUTHORIZED OVERTIME AND AUTHORIZED LEAVE. Respondent left the form she had signed April 14, 1988, and dated April 28, 1988, in the book in the Lieutenants' complex. After Respondent completed her full shift on April 14, 1988, she left work and she did not again have access to her work area or to the leave form. Respondent partially completed the form before she left work on April She filled out the portions of the form that identified the form as being her form for the period April 15-28, she marked the days she was scheduled to be off, and she marked on the form the notation "4/15 - 4/28 Baby in Hospital" as the reason for the requested leave. There were three areas of dispute between the parties relating to the completion of the leave form. First, Petitioner contends that Respondent wrote on the form the notation "4/15 - 4/28 Baby in Hospital" in the space reserved for the insertion of the reason for the administrative leave. Respondent denies making that insertion. This dispute is resolved by finding, as contended by Petitioner, that Respondent did make that insertion on the form. The testimony of Petitioner's handwriting expert, who positively identified the handwriting "4/15 - 4/28 Baby in Hospital" as being the handwriting of Petitioner is found to be more credible than the denial by Respondent that she did not make that insertion. Consequently, the testimony of Petitioner's expert is accepted and the testimony of Respondent, on this matter, is rejected. Next, Respondent disputes Petitioner's contention that she inserted on the leave form the request for either family sick leave or sick leave for each of her scheduled work days during the two week period. Finally, Respondent disputes Petitioner's contention that she inserted on the form the number of hours of leave requested for each scheduled work day. These last two areas of dispute are resolved by finding that someone other than Respondent completed these portions of the form. Petitioner's handwriting expert did not refute Respondent's denial that she completed these portions of the form. Additionally, Respondent knew at the time that she signed the leave form on April 14, 1988, and dated it April 28, 1988, that she had only six hours of sick leave available for her use and that she had 40 hours of accrued annual leave. Respondent would have had no reason to fill out the forms so as to claim some 80 hours of sick leave when she knew that she had such a limited amount of sick leave. Upon termination, correctional officers are entitled to accrued annual leave, but not for accrued sick leave. Respondent's child was not hospitalized between April 15-18, but Respondent was home attending to her sick child on those days. Respondent spoke with Lieutenant Bernstein or Lieutenant Jackson, another supervisor, to keep them advised of her situation during these four days. April 19 and 20 were her regularly scheduled days off, so she made no effort to contact BCI. On April 20, 1988, Respondent was contacted by Metro Dade Corrections and Rehabilitation (MDC) about a job for which she had applied prior to her employment with BCI. Respondent was excited about this job opportunity because she had wanted to work for MDC for a long time. She reported to the MDC personnel office as instructed late on the afternoon of April 20, 1988. On April 21, Respondent began full-time employment with MDC and began orientation and training with MDC as a correctional officer. The reason for the short notice to Respondent was that there had been an unexpected vacancy in the MDC training class. Respondent's full-time employment with MDC continued until May 16, 1988. Respondent told MDC at some undetermined point in time that she had terminated her employment with BCI by the time she was hired by MDC on April 21. Respondent attempted to contact Lieutenant Bernstein on April 21 to advise him of her change in employment, but she was unable to reach him. The representation made by Respondent to MDC that she had in fact resigned her position at BCI by the time she was hired by MDC was false. On April 22, 1988, Respondent wrote a letter of resignation to BCI, had the letter notarized, and mailed the letter to BCI. BCI did not receive this letter and was not aware that Respondent was employed at MDC until an investigator with MDC contacted the BCI personnel office during the course of a routine background investigation of Respondent. On Saturday, April 23, Respondent attempted to return her uniform to BCI, but the booth officer told her that uniforms could only be returned to the personnel office between 8:00 A.M. and 4:00 P.M., Monday through Friday. Following the close of the April 15-28, 1988, period, Lt. Jackson, another of Respondent's supervisors, reviewed the form that Respondent had left in the book in the Lieutenant's complex and affixed his initials to the form to indicate his approval of the requested leave. Lt. Jackson later changed the leave from authorized sick leave to unauthorized leave without pay after it was determined that Respondent had failed to submit a doctor's certificate following three days of sick leave as was required by BCI's personnel rules. Respondent did not receive compensation for her employment with BCI after she became employed by MDC. On April 28, 1990, Respondent talked by telephone with Joan McKinley, a personnel technician at BCI, and discussed with her overtime pay for a prior pay period. During the conversation, Respondent stated that she was out of town for two or three weeks. Respondent did not state the reasons she was out of town, and the record is not clear that Respondent made that statement to justify her absence from BCI. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Respondent assumed that her letter of resignation had been received. On or about May 9, 1989, Respondent talked by telephone with Paula Bussier, the personnel manager at BCI. Respondent told Ms. Bussier that she was looking forward to returning to work soon and that her child's health had improved. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Officials at BCI learned of Respondent's new job when a MDC background investigator appeared at BCI to check Respondent's work record there. On May 16, 1989, Respondent's employment was terminated by BCI and by MDC. On August 29, 1988, Respondent was rehired by MDC. Since that time her job performance evaluations have been satisfactory or better and she has earned a reputation for honesty and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which dismisses the Administrative Complaint filed against Respondent. DONE AND ENTERED this 1st day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2771 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact submitted by Petitioner in Paragraph 5 are rejected to the extent the findings conflict with the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Petitioner in the first sentence of Paragraph 6 are rejected as being contrary to the findings made in Paragraph 9 of the Recommended Order. All other proposed findings of fact submitted by Petitioner are adopted in material part. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact submitted by Respondent in Paragraphs 13- 15 are rejected as being subordinate to the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 16 are rejected as being subordinate to the findings made in Paragraph 14 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 23 are rejected as being subordinate to the findings made in Paragraph 11-12 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraphs 24, 25, 29, and 33 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact submitted by Respondent in Paragraphs 37- 45 are rejected as being subordinate to the findings made in Paragraph 19 of the Recommended Order. All other proposed findings of fact submitted by Respondent are accepted in material part. Copies furnished: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 N.W. 25th Street Suite 202 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards Training Commssion Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Mitchell was certified by the Criminal Justice Standards and Training Commission on May 8, 1992, and was issued Certificate No. 37-91-502-01. On April 20, 1992, Mitchell applied for a position with the Sumter Correctional Institution. The employment application asked if the applicant has ever been convicted of a felony or first degree misdemeanor. Mitchell answered "No" and certified that his answers were true, correct and complete. Mitchell also had to file a supplemental application which asks the applicant to list all arrests or convictions, including sealed records. Mitchell filled in N/A. Mitchell again attested that there were no willful misrepresentations, omissions, or falsifications in the supplemental application. Mitchell admits to having been arrested for involuntary battery on June 18, 1964; to having been arrested for strong-armed robbery on May 10, 1965; to having been arrested for disorderly conduct on December 1, 1965; to having been arrested for burglary on January 19, 1966; to having been arrested for deceptive practices on June 15, 1966; to having been arrested for purse-snatching on August 15, 1968; and to having been arrested for attempted deceptive practices on August 27, 1968. All these arrests for various misdemeanors and felonies occurred in Illinois. Mitchell admits not having divulged the arrests from Illinois on his employment application to Sumter Correctional Institution, but he claims that the omission of his arrest history on the employment application was not willful. He further claims that he chose not to list the arrest for deceptive practice on September 28, 1966, because, even though he was sentenced to a year in jail, he was granted a retrial and was cleared. Mitchell also says that he thought he was seventeen when he was arrested in 1962 and therefore did not have to list his arrests because at the time, he was a minor or youthful offender. However, he was twenty-one years old when he was arrested for the burglary and was twenty-three years old when he was arrested for purse-snatching and attempted deceptive practices. Mitchell also claims that despite his criminal history, he did not disclose the information because he had gotten other agencies to run searches of his criminal history background and those searches showed he had no criminal history in Florida. The evidence proves that Mitchell did not disclose his criminal history on the applications because he did not think the criminal history would show up if the agency ran a background check. The rest of his claims are rejected as being unworthy of belief.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order suspending the correctional officer certification of Gary L. Mitchell for eighteen months to be imposed retroactively to the September 1, 1993. DONE and ENTERED this 29th day of September, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2654 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and Training Commission Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4(1-4); 5-12(5); 13- 15(6); 16 & 17(7); and 19(8). Proposed finding of fact 18 is irrelevant and unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Gary L. Mitchell Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(1); 3(1); and 4(4). Proposed findings of fact 5 and 7-24 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1 and 6 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Gary L. Mitchell 26070 Hayman Boulevard Brooksville, Florida 32602 Steven G. Brady FDLE Regional Legal Advisor 400 West Robinson Street, Suite N209 Hurston Building, North Tower Orlando, Florida 32801 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
