The Issue The issue is whether Respondent, a certified law enforcement and correctional officer, stole money from inmates, in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on March 22, 1993, as a law enforcement officer and issued her certificate number 135498. Petitioner certified Respondent on July 25, 1995, as a correctional officer and issued her certificate number 156433. At all relevant times, Respondent was employed by the Hendry County Sheriff’s Office as a correctional officer. On October 12, 1995, deputies of the Hendry County Sheriff’s Office arrested Ernesto Estepes and escorted him to the Clewiston Substation. At the substation, Mr. Estepes turned over to a deputy $132 in cash and other personal items, including a watch and wallet. Deputies later transported Mr. Estepes to the Hendry County jail, where the $132 and other personal items were transferred. The booking officer received all of the items, including the cash, and turned them over to Respondent. Four days later, when deputies went to find the items, including the cash, to return to Mr. Estepes, they found that everything was missing, including the property receipt that the jail booking officer had completed. Respondent stole Mr. Estepes’ property, including the cash. The property was never recovered. On October 29, 1995, Hendry County Sheriff’s deputies arrested Jose Ramos. They escorted him to the Clewiston Substation, from where he was later transported to the Hendry County jail. The deputy who transported Mr. Ramos received from Mr. Ramos $112.04 in cash and other personal items, consisting of a gold Citizen quartz watch, silver chain, leather belt, and wallet. The deputy completed a property receipt for these items. At the jail, Respondent handled the booking process, which included receipt of the inmate’s property, including cash. Shortly after Mr. Ramos arrived at the jail, Respondent substituted a fraudulent property receipt for the actual property receipt. The fraudulent receipt stated that Mr. Ramos arrived at the jail with only the clothes he was wearing and was unable to sign the receipt. Respondent took the property and cash with an intent to derive Mr. Ramos permanently of these items. Mr. Ramos was released shortly after his arrest, but was not given his property. Deputies searched the jail, including the booking area, but were unable to find the property. Shortly after a thorough search had been completed, the property, except for the cash, reappeared in the booking area, which had been searched previously to no avail. The property items were returned to Mr. Ramos. The Hendry County Sheriff’s Office reimbursed the cash to the two inmates. Respondent resigned prior to the completion of the internal affairs investigation.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking the law enforcement and correctional certificates previously issued to Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997. COPIES FURNISHED: Karen D. Simmons Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Anne Dox-Haynes 1447 Ford Circle Lehigh Acres, Florida 33936 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact The Petitioner, Francisco Palafox, Jr., made applications for licensure as an unarmed guard and an armed guard. In both applications he answered that he had never been arrested. The Petitioner's fingerprints were checked by the Respondent Division through the Federal Bureau of Investigation, and a record of arrest in San Francisco, California, was revealed for Frank Madrano Palafox, Social Security #560-96-6038, born January 14, 1953, in Arizona. Correspondence with the authorities resulted in receipt of records from San Francisco, California (Exhibit 1), which reveal that Frank Madrano Palafox was arrested and charged on August 21, 1973, with possession of a prohibited weapon, but later the charge was dropped to prohibited loitering while carrying a concealed weapon, a misdemeanor. Palafox's occupation on these records is given as Army. The Petitioner produced his military records of discharge (DD 214), on which Petitioner's name, birth date, social security number and birth place were the same as that on the FBI report. Petitioner said that at the time of his arrest he had loaned his identification to another soldier. However, his DD 214 show that he was on leave at the time the arrest occurred, and that he was charged for excessive unearned military leave for the same number of days the arrest record shows that Palafox was jailed. The Petitioner then remembered he was arrested for "aiding and abetting prostitution." The Petitioner did not report the arrest for aiding and abetting on his application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner's applications for licensure as an unarmed guard and an armed guard be denied. DONE and ORDERED this 9th day of January, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Francisco Palafox, Jr. 1551 Michigan Avenue, Apt. 12A Miami Beach, Florida 33139
Findings Of Fact Petitioner, Douglas L. Adams, has been an inmate in the DOC system since prior to his arrival at UCI in January, 1984. Before coming to UCI he was confined at Baker Correctional Institution. When he was transferred to UCI he was expecting legal mail from the Florida Attorney General's Office which was to contain certain transcripts relating to a case he had before the courts. The package was received at Baker Corrections Institution after his departure and was forwarded to him at UCI. When it arrived, because it was not first class mail, there was postage due for the forwarding in the amount of $2.85 and the package was held at the Post Office in town for payment. He did not have the money to pay to pick it up at the time or for several weeks and prison scrip was not acceptable. Because he was unable to arrange to pick up the package within a reasonable time, the package was returned to the sender from which it was ultimately again sent with sufficient postage. By the time it got to him, however, the brief for the preparation of which he was going to use the transcript had already been filed. Because of the lack of the transcript, the brief was inadequate, however, and his appeal was unsuccessful. Prior to April 15, 1986, officials of DOC developed a proposed rule to be incorporated in Rule 33-3.005, Florida Administrative Code, dealing with the handling of inmates' legal mail. This rule was proposed because the DOC had received a complaint from a court of this State that some legal mail sent by the court to inmates was not being forwarded to the inmate who had been reassigned and was being sent back) to the court to the detriment of the inmate. This was a situation similar to that described above relating to the Petitioner herein. To correct this situation, this rule was developed calling for the forwarding of all legal mail, whenever received, to the inmate addressee wherever the inmate is located. Now, all legal mail will be forwarded by the receiving institution to the inmate at his new institution. Non legal mail is not. Since legal mail is generally first class mail, which is, under current DOC regulations, not opened before delivery unless contraband is suspected, there is no additional cost for the forwarding of this mail. There are certain cases, however, when the legal mail is in the form of a package containing a transcript or something of a similar nature, which cannot go first class mail, and in that case, additional postage is required. In that case, it has been the policy of the DOC, which is now formalized in the proposed rule, to forward the mail to the new installation through the postal system, with the result that postage due is to be collected from the inmate at the new institution. Even if the legal mail were to be collected, placed in a DOC envelope, and then forwarded to the new institution, it would still have to go through the U.S. mail system since DOC does not operate an internal courier system. This has constituted a problem for some inmates who do not have access to funds with which to pay postage due fees. Mr. Singletary, DOC's Assistant Secretary for Operations, when made aware of this situation at the hearing, committed the Department to amend the proposed rule immediately to provide that if postage becomes due as the result of forwarding legal mail, the DOC will assume the cost of that additional postage. DOC will not assume the cost of postage due if the legal mail is sent originally with insufficient postage, however. As a result of this stipulation, therefore, the policy now to be followed in DOC, which will be formalized immediately in an amendment to the proposed rule, will be that all legal mail addressed to inmates who have been transferred from one institution within the Department to another will be forwarded to the gaining institution without any limitation as to time and any additional postage due on the bona fide legal mail arising solely because of the forwarding will be assumed by DOC and not the inmate to whom the mail was addressed.
The Issue Whether Respondent's license as a limited surety agent should be revoked or otherwise disciplined for the reasons alleged in the Amended Administrative Complaint.
Findings Of Fact Petitioner, Department of Insurance and Treasurer, is the agency of the State of Florida which, pursuant to Chapter 648, Florida Statutes, is vested with jurisdiction to regulate licensure of limited surety (bail bond) agents. Respondent, Edward Leon Bolding, Jr., is a licensed limited surety agent, which license is currently under suspension by emergency order issued by Petitioner on June 23, 1997. Petitioner's official licensing data reflect that Respondent, Edward Leon Bolding, Jr., is a white male, born June 26, 1953, Social Security number 265-08-1197, whose address is 13803 Lake Village Place, Tampa, Florida 33624-4414. On April 21, 1997, Edward Leon Bolding II, was charged with two counts of aggravated assault in violation of Section 784.021, Florida Statutes, a third degree felony, in Case No. 97-00004536, Criminal Division, Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. The criminal information describes Edward Leon Bolding II as a white male, born June 6, 1953, Social Security number 265-08-1197. The criminal report affidavit filed in criminal Case No. 97-4536 further lists Edward Leon Bolding II with an address of 13803 Lake Village Pl. 33624. The Hillsborough County Sheriff's Office, Detention Department's arrest records for Edward Leon Bolding II describe the defendant as a white male, born June 26, 1953, Social Security number 265-08-1197, and whose address is listed as 13803 Lake VL PL, TAMPA 33624. The arrest records further list next of kin as Edward Bolding, Sr., whose relationship to Edward Leon Bolding II is father. On June 23, 1997, Petitioner filed an Emergency Order of Suspension and an Administrative Complaint against Respondent Edward Leon Bolding, Jr., alleging that Respondent was charged in Case No. 97-00004536 with two counts of aggravated assault, each a felony, in violation of Section 764.021, Florida Statutes. On July 3, 1997, Respondent Edward Leon Bolding, Jr., filed an Answer to the Administrative Complaint which admitted that Respondent was a licensed limited surety agent, born June 6, 1953, Social Security number 265-08-1197, whose address was 13803 Lake Village Place, Tampa, Florida 33624. On July 14, 1997, Edward Leon Bolding II pled guilty to two counts of aggravated assault, each count a felony in violation of Section 784.021, Florida Statutes, in the above- described Case No. 97-00004536, Criminal Division, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. On August 28, 1997, Petitioner filed an Amended Administrative Complaint alleging that Respondent Edward Leon Bolding, Jr., pled guilty to two felony counts of aggravated assault. On October 3, 1997, Respondent filed an Answer to the Amended Administrative Complaint which, as set forth above, denied all allegations except that Petitioner has jurisdiction over limited surety licenses. The Hillsborough County Sheriff's Office's arrest records, the criminal court records in Case No. 97-00004536 of the Thirteenth Judicial Circuit, and the Petitioner's licensure records, all identify Edward Leon Bolding II, defendant, who pled guilty in Case No. 97-00004536, and Edward Leon Bolding, Jr., Respondent in this administrative proceeding, as one and the same person.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Department of Insurance and Treasurer, enter a Final Order denying the licenses and eligibility for licensure of Respondent, Edward Leon Bolding, Jr. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998. COPIES FURNISHED: Dickson E. Kesler, Esquire Division of Legal Services 401 Northwest Second Avenue Suite N-321 Miami, Florida 33128 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
Findings Of Fact 1. Incorporated in Finding of Fact 1. 2. Incorporated in Finding of Fact 3. 3. Incorporated in Finding of Fact 4. 4. Incorporated in Finding of Fact 5. 5. Incorporated in Findings of Fact 4 and 6. 6. Incorporated in Finding of Fact 5. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Findings of Fact 7 and 8. COPIES FURNISHED: Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louis A. Vargas General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Julia P. Forrester, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301 Vernell Hadley Jackie B. Blevins Samuel Moore Douglas Adams Union Correctional Institution P. O. Box 221 Raiford, Florida 32083 Liz Cloud Chief Bureau of Administrative Code 1802 The Capitol Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32301
Findings Of Fact Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays. DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 29th day of November, 1989. COPIES FURNISHED: Gene "Hal" Johnson, Esquire 300 East Brevard Street Tallahassee, Florida 32301 Perri King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Ms. Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue Whether pursuant to section 120.595, Florida Statutes (2015),1/ Petitioner, Randall B. Johnson (Johnson), should be awarded reasonable costs and attorney’s fees incurred in defense of an administrative proceeding initiated by Respondent.
Findings Of Fact The procedural history of the underlying action is set forth in the PERC Order, and includes a majority of the relevant facts, which are not in dispute. Findings of Fact 2 through 9 below are taken directly from the PERC Order. On September 19, 2014, the Department of Corrections (Agency) dismissed Randall B. Johnson pursuant to the extraordinary dismissal procedure in section 110.227(5)(b), Florida Statutes. The final action letter (September 19 Letter) alleged that, four years earlier, on or about September 19, 2010, Johnson inappropriately participated in a use of force incident that resulted in the death of an inmate. Johnson was also informed that a copy of the investigation upon which the charge was based would be available when it was completed. On September 24, 2014, Franklin Correctional Institution Warden, Christopher G. Atkins, contacted Johnson and informed him that the September 19 Letter was inaccurate and the Agency needed to send him a corrected final action letter (September 24 Letter). Atkins did not read the letter to Johnson or tell him the substance of the allegations against him. The amended final action letter was sent to Johnson by certified mail. On September 29, 2014, Johnson filed an appeal with the Commission challenging his dismissal, based on the September 19 Letter. Johnson stated in his appeal: "I was not involved in a use of force incident that resulted in the death of an inmate, as I was not working on September 19, 2010." A hearing officer was appointed and a hearing was scheduled. On October 1, 2014, the Agency filed a Notice of Corrected Final Action Letter with the Commission asserting "that due to a clerical error, certain information contained in the letter issued to the Employee on September 19, 2014, was incorrect . . . ." The amended final action letter, dated September 24, 2014, deleted the factual allegations from the September 19 Letter and substituted the following: Specifically, on or about June 6, 2013, the Office of the Inspector General received information alleging improper conduct of some of its officers. Further investigation into the allegation revealed that you submitted an inaccurate or untruthful report, introduced contraband into Franklin Correctional Institution, and engaged in an unprofessional relationship with former inmate and current supervised offender, Luke Gruver/U01117. The basis for these charges is contained in an on-going investigation by the Inspector General's Office, Case Number 13-7092; copy available upon completion. On October 6, 2014, Johnson filed a motion for summary judgment and/or judgment on the pleadings and a motion for attorney's fees and costs. On October 22, 2014, the hearing officer issued an order which, among other things, denied the motions filed by Johnson on October 6, 2014. On October 28, 2014, Johnson filed a motion to dismiss and motion for attorney's fees. This pleading was followed on November 4, 2014, by an amended motion to dismiss and motion for attorney's fees. A hearing on Johnson's motions was held on February 2, 2015. On February 4, 2015, the hearing officer issued an order concluding that the September 24 Letter was vague and that Johnson was prejudiced in his ability to defend himself by its vagueness. Therefore, he denied the Agency's attempt to amend the September 19 Letter with the September 24 Letter. The hearing officer also determined that the September 19 Letter was sufficiently detailed to provide Johnson with notice of the charges against him. The Agency was directed to respond and state whether it intended to proceed to a hearing on the allegations in the September 19 Letter. Finally, the hearing officer deferred ruling on whether the Agency violated section 112.532(6), Florida Statutes, the Law Enforcement Officers' and Correctional Officers' Bill of Rights, and whether Johnson was entitled to an award of attorney's fees pursuant to section 120.595. On February 11, 2015, the Agency filed a notice with the Commission that it was rescinding the September 19 Letter, marking it void, and reinstating Johnson on February 13, 2015, to the position of correctional officer at Franklin Correctional Institution. The Agency also requested that the Commission schedule a back-pay hearing. On February 13, 2015, Johnson filed an objection to the Agency's request for a back-pay hearing and renewed his request for an award of attorney's fees and costs. On February 17, 2015, the hearing officer issued his recommended order concluding that Johnson was entitled to reinstatement, back pay, and other benefits, as well as interest at the lawful rate, commencing on September 19, 2014. He also determined that the Commission did not have jurisdiction to consider the issue of attorney's fees pursuant to section 120.595, because that statute only authorizes fee awards to be made by an Administrative Law Judge (ALJ). However, he recommended two alternative methods for the attorney's fees issue to be referred to an ALJ at DOAH. On February 25, 2015, Johnson filed five exceptions to the recommended order. A transcript of the February 2, 2015, motion hearing was filed. In one of his exceptions to the recommended order, Johnson challenged the hearing officer’s conclusion that PERC does not have jurisdiction to award attorney’s fees and costs pursuant to section 120.595, because such a determination can only be made by an ALJ. The PERC Order sustained the hearing officer’s conclusion that PERC does not have the authority to consider an attorney’s fees request made pursuant to section 120.595. It also adopted the hearing officer’s recommendation that the request for attorney’s fees and costs be referred to DOAH for consideration by an ALJ. Accordingly, the PERC Order “shall serve as the Commission’s referral to DOAH of Johnson’s request for attorney’s fees and costs from the Agency pursuant to Section 120.595, Florida Statutes.” The Notice of Corrected Final Action Letter filed by DOC with PERC dated October 1, 2014, sought to replace the September 19 Letter with the September 24 Letter. The Corrected Final Action Letter stated DOC was filing a “corrected final action” necessitated by a “clerical error.” In fact, the September 24 Letter does not correct clerical errors but rather makes completely different factual allegations and charges against Johnson and references the date of the incident (or incidents) as 2013. The extensive procedural history of this case, which includes a recitation of all the pleadings filed by the parties and the arguments therein, is set forth in the Commission’s Order Vacating Agency Action and Referring Attorney’s Fees Petition to DOAH. As noted, the PERC Order refers this case to DOAH for consideration of the issue of attorney’s fees and costs. All pleadings filed by Johnson in both the disciplinary case and the back-pay case before PERC were prepared and filed on his behalf by the law firm of Flury & Atkins. The billing statements admitted into evidence during the DOAH proceeding reflect the time spent by counsel researching and drafting motions and proposed orders in the discipline and back-pay cases, as well as the time spent reviewing the pleadings of the Agency, and the orders of the PERC hearing officer. Attorney Elizabeth Willis, a former PERC hearing officer, testified that the issues presented in Johnson’s cases before PERC were unique and difficult. Ms. Willis testified she reviewed the pleadings and orders of the underlying cases before PERC, as well as the Billing Statement of Flury & Atkins, LLC. Based upon her review and her knowledge of PERC proceedings and the law in this area, she concluded the hours expended by counsel and the hourly rates charged were reasonable. While DOC asserted in its Proposed Recommended Order that the amount of attorney’s fees and costs being sought by Johnson is excessive, it presented no evidence to support its contention. Rather, the unrebutted evidence of record established that the reasonable attorney’s fees and costs incurred by Johnson in the proceedings before PERC was $12,431.00.
The Issue The issue to be determined is whether Respondent failed to maintain good moral character as defined in Florida Administrative Code Rule 11B-27.0011(4), in violation of section 943.1395(7), Florida Statutes (2011), and if so, what penalty should be imposed for the violation(s) proven.
Findings Of Fact Respondent is a law enforcement officer certified by the Florida Criminal Justice and Standards Training Commission on July 30, 1986, and holds certificate number 102180. At the times material to the Administrative Complaint, Respondent was employed by the Escambia County Sheriff's Office (ECSO). He has since retired. On October 21, 2011, at 12:07 p.m., Respondent responded to a harassing telephone calls complaint at 1901 St. Mary Avenue. At that address, Respondent met with William Clark, who informed Respondent that Heather Tramuta's public defender had been calling Tramuta, Clark's girlfriend, inappropriately. Respondent spoke with Tramuta by telephone and generated Offense Report ECS01100F030535 (Offense Report 030535). The ECSO uses an integrated computer system called Smart Cops, produced by CTS Systems. The system includes several integrated database modules, including Offense Report, Master Name Index, Jail, Arrests, Evidence, and Case Management. An officer initiates an offense report by calling from the field to a Report Taker at the sheriff’s office, who inputs the information provided to him or her into the Offense Report module. Information is provided according to the questions in the program, starting with entering the type of report and location, and then filling in the names of the people involved, as well as any property at issue. The officer then provides a narrative for the report. The Report Taker inputs the information given, sometimes in shorthand form. He or she then goes back and “cleans it up,” correcting the spelling and grammatical errors, and then forwards the report to the Senior Report Taker, who reviews it and points out any additional errors. When all corrections are completed, the Senior Report Taker “finishes” the report and forwards it to the supervising officer for review. The supervising officer has a filter on his or her computer that indicates the different types of items to be tracked. For example, yellow indicates a pending report that has been approved, but officers are to follow up on the initial report. Purple means there is a warrant affidavit. Gray is a report still being corrected by the Report Takers. White is a report that is ready for the supervising officer’s approval. The Offense Report module is integrated with other modules in the Smart Cop system. For example, every name listed in an offense report is also listed in a Master Name Index (MNI). If someone knew the name of an individual involved in an incident but not the Offense Report number, they could access the Offense Report by accessing the MNI and querying that person’s name. The MNI will show every report in which that person has been involved, whether as a suspect, a victim, or a witness. Officers frequently access the MNI when preparing Offense Reports to obtain information on the individuals involved in the report they are initiating. The Offense Reports and MNI modules of Smart Cop are available to nearly all ECSO employees; other modules are available based on need. The State Attorney’s Office and Pensacola Police Department, as well as other law enforcement agencies throughout the region, have access to the information in the program through a module called Data Share. To access information through Data Share, agencies use a web portal hosted through the secure criminal justice information system from FDLE, and use that interface to log on and pull information from the database in a web format. However, it is not possible for someone to use Data Share to actually print an ECSO report in the same format that ECSO does. Smart Cops also has a report called a transaction log report. The transaction log report is a user-interfaced front- end report that identifies whenever someone has interfaced with the offense application in some way. A similar report can be run for accesses to the MNI. On October 21, 2011, Respondent accessed the Master Name Index Record of Heather Tramuta at 12:32 p.m. and 12:37 p.m. On October 21, 2011, at 3:30 p.m., Respondent contacted Report Taker Lori Trilone to initiate Offense Report 030535, which resulted in a logged access for Offense Report 030535. Because of the nature of the report, Respondent also contacted his supervisor, Sergeant Lisa Dixon, to advise her of the report he was initiating. Sergeant Dixon, in turn, alerted people in her chain of command that a report of a somewhat sensitive nature was coming through the system. On October 21, 2011, between 3:32 p.m. and 3:34 p.m., Report Taker Lori Trilone accessed the MNI record for Heather Tramuta eight times. These accesses occurred while Respondent was calling in the Offense Report 030535 to Trilone. On October 21, 2011, between 3:31 and 3:34 p.m., Sergeant Lisa Dixon, Respondent’s supervisor, accessed the MNI record of William Clark four times. These accesses were related to a separate inquiry by Mr. Clark that Lieutenant Joye, Sergeant Dixon’s supervisor, had directed her to handle, and were unrelated to Offense Report 030535. According to event logs for Offense Report 030535, Report Taker Lori Trilone worked on completing Offense Report 030535 on October 21, 2011, between 3:30 p.m. and 4:11 p.m. On October 21, 2011, Offense Report 030535 also was accessed through ECSO's computer program as follows: at 3:31 p.m. by Report Taker Darilyn Miller; at 3:55 p.m. by Detention Deputy Randall Bradshaw; at 4:13 p.m. by Sergeant Lisa Dixon; at 4:22 p.m. by Commander Ricky Shelby; at 4:55 p.m. and 5:53 p.m. by Sergeant Lisa Dixon; at 6:02 p.m. and 6:04 p.m. by Sergeant Alan Miller; and at 8:12 p.m. through 8:20 p.m. by Senior Report Taker Lori Scott as she updated and finished the report. Lori Scott marked Offense Report 030535 as finished at 8:20 p.m. on October 21, 2011. On October 22, 2011, Respondent accessed the MNI record of Heather Tramuta at 6:50 a.m. and 6:52 a.m. There were no other recorded accesses to the MNI records of Heather Tramuta or William Clark on October 21 or 22. Sergeant Lisa Dixon accessed and approved Offense Report 030535 on October 22, 2011, at 6:55 a.m. On approximately October 28, 2011, Offense Report 030535 was posted online on the website LEOAffairs.com. At that time, it was still confidential criminal justice information, as the matter remained under investigation at the time of the report's disclosure. Documents can be printed from Smart Cop in two formats. The older, “Legacy” format is text-based and contains no graphics. The newer “CTS” format is the default format and is windows-based, with different fonts and graphics, such as the sheriff’s star. There is conflict in the testimony as to whether a person could print an offense report in both formats in October 2011, when pulling the offense report from the MNI module. Regardless, the copy of Offense Report 030535 posted online was in the newer, CTS format. Sergeant Lisa Dixon saw Offense Report 030535 on LEOAffairs. She then notified her supervisor, Lieutenant Joye, of the posting. Lieutenant Scott Allday was directed by his Commander, Darlene Dickey, to see if he could find out how the post was released. Lieutenant Allday narrowed his “window” for purposes of determining accesses to Offense Report 030535 based on the text in the version that was posted. He determined that the posted version was the same as the version approved by Sergeant Dixon, except that there was no supervisor’s signature on the posted version: that portion of the report was circled but left blank. That window starts at 8:20 p.m. on October 21, when the report was finished by Lori Scott, and ends at 6:55 a.m. on October 22, when Sergeant Dixon approved it. Lieutenant Allday testified that he did not investigate past October 22, 2011, once he narrowed the window to the period described above. Lieutenant Allday’s decision to look only at this period of time is based on the text of the posted copy of the Offense Report 030535, and the lack of a supervisor’s signature. However, the quality of the posted copy is very poor. When asked whether the supervisor’s signature could have been whited out, no witness could refute that possibility. While it is not clear, the possibility that the signature was in fact whited out exists. If so, then it is possible that the window of time in which the document could have been accessed would widen to up to and include October 28, 2011. Lieutenant Allday spoke to Sergeant Dixon, Commander Shelby, Colonel Hardy, Lori Trilone, Lori Scott, Linda Aiken, Kelly Richards (an attorney), reporter Katie McFarland, Cheryl Gooden, and perhaps some others in the course of his investigation. Only one person told him that he or she had printed a copy of the report; none indicated they had disclosed the report to anyone. Colonel Hardy had printed a copy of the report, but he printed his copy on October 24, and his copy was printed in Legacy format as opposed to the CTS format posted online. When Lieutenant Allday asked Colonel Hardy about the report, the printed copy in Legacy format was still on his desk. Once an offense report is downloaded and printed, it can be copied and the date and time those copies were printed would not be known. Moreover, while the audit logs track accesses to the different components, they do not necessarily track saves. Someone could access the document, view it and save it to a thumb drive, and later print from the thumb drive. Only the access and view would be recorded on an audit log. Lieutenant Allday contacted the person in charge of LEOAffairs to see if he could provide the IP address of the site that uploaded the information to the website, and was unable to obtain that information. Respondent was interviewed during the investigation and admitted that he had printed a copy of Offense Report 030535, but denied providing it to anyone or posting it online. He indicated that he had shredded the report. Printing a report is not against ECSO policy. Respondent was not asked in the Internal Affairs’ interview whether he knew how to upload a document on a website. Respondent credibly denies knowing how to do so. Lieutenant Allday stated at hearing that he is familiar with Respondent’s computer skills, and would be surprised if Respondent knew how to upload a document to an online forum. No witnesses with whom Lieutenant Allday spoke told him that Respondent had given them a copy of the offense report. Consistent with his interview during the internal affairs investigation, Respondent testified credibly that he routinely printed copies of offense reports he has filed so that he had them for reference. He kept them in milk carton crates in the trunk of his patrol car. In January 2012, Respondent went on stress leave. Before turning in his patrol car, he removed all of his personal belongings, and shredded all of the copies of offense reports in the trunk of his car. Offense Report 030535 was one of many, possibly a few hundred, offense reports shredded at that time. Respondent was not aware of the internal affairs investigation and was not interviewed until after he shredded the documents and went on stress leave. There is clear and convincing evidence that Respondent is one of a few people who both accessed and printed Offense Report 030535. However, there is no real evidence to support the allegation that Respondent released the report to anyone or that Respondent posted the report online, or that Respondent lied during his internal affairs interview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 10th day of October, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of October, 2013.
The Issue The issue to be determined is whether Petitioner has demonstrated eligibility for licensure as a resident life, including variable annuity, insurance agent.
Findings Of Fact Based upon the observation and the demeanor of the witnesses while testifying, documentary material received in evidence, stipulation of the parties, and evidentiary rulings during the hearings, and the entire record complied herein, the following relevant, material, and substantial facts are determined: The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2004). On October 4, 2004, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity, insurance agent. The online application form completed by Petitioner for the licensure at issue included the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered this question in the negative. On November 9, 2004, the Department sent a letter to Petitioner, requesting she provide, among other things, certified copies of court documents relating to her 1999 arrest in Hillsborough County, Florida, for child abuse. Petitioner found the above question to be confusing and in an attempt to be completely forthcoming, she sent the Department copies of two documents: (1) an August 9, 2004, letter to Petitioner from the Department of Corrections and (2) Petitioner's two-page printout regarding the Probation/Parole record. The Department received the referenced documents on November 23, 2004. Petitioner's criminal history established a November 18, 1999, arrest on two felony counts of aggravated child abuse. Petitioner had used an electric cord to spank her daughter as punishment for stealing and had left marks on the child as a result. The two-count information was filed in the Thirteenth Judicial Circuit, Hillsborough County Circuit Court, Case No. 99-20373, on January 27, 2000. On December 13, 2000, Petitioner entered a plea of guilty to one felony count of child abuse, as set forth in Count II of the information, and the second count pending against Petitioner was nolle prossed. The disposition of the case was that adjudication of guilt be withheld on the one felony count of child abuse and that Petitioner be placed on four years probation and required, inter alia, to complete parenting and anger management classes, which she did. Circumstances that resulted in Petitioner's plea involved her method of disciplining her daughter. Petitioner was born and grew up in Haiti and her method of punishment, spanking her daughter with electric cord, is culturally accepted. Spanking with electric cord leaves bruises and marks on the child spanked. Petitioner's testimony indicates that she learned through her anger management classes that the Haitian method of punishment is not considered appropriate, and other nonphysical methods would bring about desired results. Petitioner now has four children. She is employed by Lakeshore Villas, a nursing home where she is responsible for caring for elderly persons, as a full-time Certified Nursing Assistant (CNA). To acquire her CNA license from the Department of Health (DOH), Petitioner testified that she reported her criminal history to the DOH, and no disciplinary action was taken by the agency because of her plea. Even though the answer to the criminal history question on her application for licensure was not correct, circumstances evident from evidence of record reveals that Petitioner, in fact, disclosed her criminal history to the Department prior to the Department's specific inquiry about that history. She testified that her "no" answer on the application was because she spent only two days in jail. Subsequently realizing the possibility of a misunderstanding, Petitioner, before a request by the Department, mailed documents to the Department that disclosed her criminal history. Viewed in the totality of circumstances, Petitioner's voluntary disclosure of her criminal history negates any reasonable inference or conclusion that Petitioner made an intentional "[m]aterial misstatement, misrepresentation, or fraud in . . . [her] attempt to obtain the licensure or appointment," Subsection 626.611(2), Florida Statutes (2004). Likewise, the simple fact that Petitioner (through misunderstanding) incorrectly answered the application question does not show that Petitioner's conduct demonstrated a "lack of fitness or trustworthiness to engage in the business of insurance." Notwithstanding the foregone findings, there is no evidence that Petitioner was under the age of 21 years when the crime was committed. There is no written documentation from the prosecuting attorney evidencing the belief that Petitioner posed no significant threat to public welfare if licensed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Petitioner did not attempt to obtain the license at issue through material misstatement, misrepresentation or fraud, but that Petitioner has not met the 15-year mandatory waiting period applicable to her criminal history and is, therefore, ineligible for licensure pursuant to Subsection 626.611(14), Florida Statutes (2004), and denying Petitioner's request for relief. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alia Baptiste Sossous 10310 Birdwatch Drive Tampa, Florida 33647 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
