The Issue Is Petitioner qualified for practice as a real estate sales associate, when considering his criminal history record in its substance and point in time?
Findings Of Fact Petitioner was born on September 18, 1975. Petitioner applied to the Commission to become an associate. The application was received August 5, 2005. Petitioner made application to become an associate on the form provided by DBPR. In response to a question about his background, Petitioner revealed information concerning crimes he was accused of committing. On May 27, 1994, Petitioner was arrested by the Panama City Beach, Florida, Police Department and charged with marijuana possession over 20 grams, marijuana possession with intent to deliver, and marijuana sale or purchase, all under authority set forth in Section 893.13, Florida Statutes. The original marijuana case involved arresting charges for felonies. This case was assigned upon charges in the Fourteenth Judicial Circuit, Case No. 9401076CFA. On September 18, 1995, the case was disposed of when it was dropped/abandoned. On October 28, 1996, Petitioner was arrested by the Seminole County Sheriff's Office in Seminole County, Florida, on three counts of fraud related to checks written upon insufficient funds. One check from May 30, 1996, was for $40.00 to Bayou George Rainbow, two additional checks in the amount of $75.50 each from the date June 7, 1996, were written to Publix. When Petitioner was charged there were three counts, a single count for each check. This case originated in Bay County, Florida. On November 8, 1996, the Petitioner pled guilty to Count I within the charges. He pled nolo contendere to Counts II, III, and IV within the charges. He was assessed $149.00 in relation to Count I. The fourth count within the charges is of unknown origins, when considering the proof at hearing. Adjudication was withheld in relation to all counts. This disposition was made in Case No. 96004585MMMW. On May 14, 1997, Petitioner was arrested by the Pensacola Police Department for possession of marijuana, in an amount under 20 grams, pursuant to Section 893.13, Florida Statutes. This case was brought before the Escambia County Court, Case No. 9720966MMA. On June 4, 1997, Petitioner pled nolo contendere to a first degree misdemeanor pertaining to the marijuana possession. The adjudication was withheld. Petitioner was placed on probation for six months and required to pay $160.00 in court costs. On April 24, 1998, Petitioner was arrested by the Panama City Police Department for marijuana possession with intent to distribute, a felony under Section 893.13, Florida Statutes. He was also arrested for narcotic equipment possession under Section 893.147, Florida Statutes, a misdemeanor. He was charged before the Circuit Court of the Fourteenth Judicial Circuit, in Case No. 9800991CFA. On December 15, 1998, Petition pled nolo contendere to possession of a controlled substance and adjudication was withheld. He pled to what has been described in the proof as controlled substance possession, sell etc., a felony. He received four years' probation. Petitioner also pled nolo contendere to the narcotic equipment possession or the possession of paraphernalia on the same date, for which he was found guilty/convicted, with terms of probation for one year to run concurrent with the probation associated with the other offense. In relation to the present case, where Petitioner pled to offenses involving marijuana, information provided indicated that he was called upon to abide by any court restrictions placed on him. On November 26, 2002, Petitioner was arrested by the Walton County Sheriff's Office under Section 784.03, Florida Statutes, for battery, cause(d) by bodily harm associated with domestic violence, a first degree misdemeanor. He was charged in the County Court of the First Judicial Circuit, in and for Walton County, Florida, in Case No. 021299MM. On March 24, 2003, Petitioner pled no contest to simple battery. Adjudication was withheld and he was required to pay $301.00 in costs and to attend and complete an anger management course and have no violent contact with the victim. On January 17, 2006, the Commission entered a Notice of Intent to Deny Petitioner a license to become an associate based upon the criminal violations that have been described. The Notice of Intent established specific reasons for the denial that will be discussed in the Conclusions of Law. To place the criminal offenses in context Petitioner, his mother, step-father and a family friend testified about Petitioner's life. Petitioner began to have problems with his conduct when his parents had their marriage dissolved. Around that time Petitioner was in the transition between late adolescence and his teenage years. Eventually his mother remarried and the two families combined. That arrangement was difficult because of conflict between Petitioner and a step-brother. Petitioner concedes the problems that he had with marijuana. When Petitioner was charged with 20 grams of marijuana on one occasion, he admits to having seven grams on his person. In addressing the problem he participated in separate court-ordered drug programs which he completed. His drug abuse entered into the decision to write checks for insufficient funds. Concerning the incident involving the charge of domestic battery, which was resolved by a no contest plea to simple battery, Petitioner without contradiction, testified that this situation came about on the basis of an argument with his girlfriend, a verbal exchange not involving physical contact. The situation that led to his arrest for domestic misconduct took place when Petitioner and his girlfriend had an argument at the beach. He was arrested the next day. Petitioner attended the anger management course that he was ordered to attend. Petitioner indicated that there were no further confrontations with the girlfriend. Petitioner satisfactorily complied with the terms of his probation in each criminal case. Petitioner reports that he has been drug-free since 1998. Jimmy Ruthven, Petitioner's stepfather, described the family issues and conflict in the beginning of the relationship between the witness, Petitioner and their respective families. Mr. Ruthven has been the step-father for 15 years. He describes Petitioner in more recent times, as doing better, as being stable without problems. Brenda Ruthven, Petitioner's mother, identified the divorce from her former husband as the beginning point for Petitioner's problems. In this period Petitioner was rebellious, used drugs, had undergone counseling and so forth. During the last four or five years she has seen a turnaround in Petitioner's conduct. Over the last four years Petitioner has been more responsible. Renee R. Willoughby, a family friend who has been familiar with Petitioner over time, has noticed in the last six or seven years that Petitioner has improved in his conduct and has shown himself to be a person of intelligence and integrity. Petitioner attends Florida State University. He is a Dean's list student in Business Administration and Marketing. He served on the Student Council and the Campus Improvement Board at the Panama City, Florida, campus of the university. He expects to graduate in December 2006. Petitioner has worked at Criolla's Restaurant at Santa Rosa Beach, Florida, since February 2002, as a server and bar tender.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner a license as an associate. DONE AND ENTERED this 14th day of July, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2006. COPIES FURNISHED: James D. Veal 209 South Cove Lane Panama City, Florida 32401 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Nancy B. Hogan, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not Respondent unlawfully and knowingly warned the subject of an ongoing narcotics investigation with the intent to obstruct the investigation and assist the subject of the investigation, and thereby failed to maintain the qualifications and good moral character required of a law enforcement officer.
Findings Of Fact Respondent, Mark R. Schlechty, was certified as a law enforcement officer by Petitioner, Criminal Justice Standards and Training Commission, on October 5, 1984, having been issued certificate number 35-84-002-03. Respondent was employed by the TPD for approximately four years. Respondent is presently employed as a reservations agent with Eastern Airlines, having resigned from the TPD following the culmination of an internal investigation by the TPD. During the first half of 1987, Respondent was assigned to patrol the downtown Tampa area (Kilo Squad) working the 4:30 p.m. to 1:00 a.m. shift. It was customary for Respondent and his squad to eat their evening meal at the Hyatt Regency Hotel in downtown Tampa, since it was one of the few downtown area restaurants open to eat after 9:00 p.m. As a result of dining at the Hyatt Regency Hotel, Respondent became friendly with several members of the hotel's restaurant staff, including waiters Mark Gotheer and Jeff Stuart. Respondent did not fraternize with Gotheer and Stuart away from the restaurant, although they spoke about meeting to socialize on a number of occasions including going surfing together and staying a weekend at the Hyatt in Orlando to visit Disney's Theme Park. Respondent, as were all members of the TPD, was required to be selective of their acquaintances. Respondent was familiar with TPD's rules and regulations that restrict an officer from associating with individuals known or suspected of engaging in illegal activities. During the spring of 1987, Respondent was unaware of any criminal activity occurring at the Hyatt or that the TPD's vice unit was conducting an active/ongoing drug investigation at the hotel. During the spring of 1987, Respondent's squad leader, Corporal Richard Olewinski, advised Respondent and the members of his squad that some of Hyatt's employees were suspected of dealing in illegal narcotics. Olewinski advised Respondent to be careful with whom he associated because employees Stuart and Gotheer were rumored to be involved in illicit activity at the hotel. Olewinski did not advise Respondent that the information was confidential or that TPD's vice unit was conducting an active/ongoing investigation of such employees. Likewise, Respondent did not consider the information received from Corporal Olewinski to be confidential, instead understanding Olewinski's advice to be a warning that other officers should be careful with whom they associate. As a result of Respondent's association with Gotheer and Stuart, while dining at the Hyatt, Respondent decided to confront them about the rumor based on his concern of being associated with them if they were, in fact, involved in illegal activity. To that end, Respondent approached Stuart on the next occasion that he frequented the Hyatt and inquired of Stuart if he and Gotheer were "dealing in cocaine or doing anything illegal." Gotheer was not at work, however, Stuart denied that either was engaged in any illegal conduct. Respondent also cautioned Stuart that they (TPD) were "looking at this place." Respondent told Stuart that if they were dealing drugs they would get caught and he cautioned Stuart to pass the word on to Gotheer, that if they were involved in any illegal activity, he could not deal with them as they were "bad news". Respondent's concern was to protect himself and admitted that "he did not care how they -- what they did with their personal lives if they use illegal narcotics. But, ... if they were to bring it out in front of me or do it around me, I would take action upon them." Detective Orrill was assigned to conduct an undercover investigation concerning allegations against Gotheer. Orrill met with a cashier at the Hyatt and obtained her assistance in conducting his investigation. During the interim, detective Orrill conducted a background investigation on Gotheer and planned to utilize the cashier to introduce him to Gotheer as her new boyfriend at an upcoming party at Gotheer's home. Within several weeks time, Orrill arranged for the cashier and himself to go to Gotheer's home for a party. On the day of the party, the cashier advised Orrill that she was unwilling to further assist in the investigation as Gotheer advised her of his awareness that he was being investigated by the TPD. Approximately one year later, detective Orrill again had an opportunity to investigate Gotheer. This came about when a detective-trainee under detective Orrill's supervision arrested a subject on narcotics charges. The subject named Gotheer as his narcotics supplier. With the subject's assistance, Gotheer was arrested for possession, in excess of 400 grams, of suspected cocaine. Gotheer agreed to provide information about Respondent's involvement in the 1987 investigation at the Hyatt. Gotheer advised Orrill that in 1987, he received a message from Respondent warning him of the original investigations. As a result of that arrest, Gotheer agreed to assist in the Department's investigation of Respondent by wearing a concealed microphone during an arranged meeting with the Respondent. During that arranged meeting with Respondent on June 6, 1988, Respondent restated his words of caution to Stuart to tell Gotheer to "lay low" because they were looking at the hotel employees and that they were going to get caught if they "f around." Respondent's intent, by sending the word to Gotheer and by advising Stuart to "lay low," was not based on any intent on his part to obstruct an investigation, but was rather to disassociate himself from them if they were engaged in illegal acts. On June 14, 1988, Respondent gave a sworn statement to Sergeant Stephen Hogue and A. Stertzer of the TPD Internal Affairs Bureau. During that statement, Respondent initially denied informing Gotheer either directly or indirectly about an ongoing police investigation directed at Gotheer. Respondent's concern was job retention and to protect himself from scrutiny by either internal affairs or his fellow officers. Respondent subsequently corrected his misstatements in his initial conversation and statement with officers Hogue and Stertzer, of the Internal Affairs Bureau. (Petitioner's Composite Exhibit 4.) Respondent's explanation for his conduct is consistent with his reputation as a police officer with the TPD. In his four years of service with the Department, Respondent has received several commendations and has a reputation of being a good and reliable officer who does not tolerate or condone the use or sale of illegal drugs. In this regard, Respondent was handpicked to serve on the Kilo Squad based on his tough stance on putting drug traffickers off the street. Nothing was introduced to indicate that Respondent was, in any manner, tolerant of drug users. Being a police officer or to be employed in law enforcement is a longtime career goal of Respondent, as his father served as a police officer and he admired his father for the work that he did as a law enforcement officer. In retrospect, Respondent admits that his conduct, in confronting employees Stuart and Gotheer about their drug involvement, may have been "immature and perhaps he did not look at the whole picture." Respondent has now learned a valuable lesson and is desirous of remaining eligible for employment as a law enforcement officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner enter a Final Order dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of July, 1990. Copies furnished: Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gene "Hal" Johnson, Esquire 300 East Brevard Street Post Office Box 11239 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James E. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
