The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
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 as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in the case is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact 1. Petitioner is 32 years old, unmarried, and a 1992 graduate of Auburn University with a degree in business administration. He attended college on a athletic scholarship and was a captain of the football team. 2. Since graduation he has worked extensively with teenagers as a youth development professional with Boys and Girls Club of Central Plorida, as a recreational leader with Orange County Parks and Recreation; as a substitute teacher at Maynard Evans High School, where he worked with physically impaired students; and as a night monitor at The Center for Drug Free Living. 3. On November 27, 2000, Petitioner submitted an Employment Application with the Department of Juvenile Justice seeking the position of Juvenile Probation Officer. 4. As a part of the November 27, 2000, Employment Application, Petitioner indicated that he had not been convicted, pled nolo contendere, or had adjudication withheld on a crime which is a felony or first-degree misdemeanor. 5. On October 30, 2000, Petitioner executed an Affidavit of Good Moral Conduct which states, in part, "I have not committed an act which constitutes domestic violence .. ." 6. As a result of background screening, it was determined that on a January 14, 1990, Petitioner was charged with "Assault 3rd" in Auburn, Alabama, as a result of a meleé involving members of a fraternity and the football team. On February 19, 1990, the charge was dismissed. 7. The background screening also revealed that on November 11, 1995, Petitioner was charged with Battery (Domestic Violence); was arrested on November 29, 1996 (over a year later) for the offense; and had adjudication withheld after a plea of nolo contendere to the offense on February 5, 1997. 8. On February 5, 1997, Petitioner was sentenced to supervised probation for 363 days, required to attend a batterer's intervention program, and charged $115 in court costs. He successfully completed probation. 9. On December 16, 2000, Petitioner wrote the IG stating: This letter is to clarify why I failed to indicate the offenses on the notarized Affidavit of Good Moral Character. I did not indicate the offenses because I thought you are only supposed to write down convictions of a felony or first-degree misdemeanor. I did not know pleading no contest was counted as guilty. Therefore, I thought the circumstances did not fit my offenses. I conversed with a Department of Juvenile Justice employee when applying for the position, and they [sic] informed me that the Department was only looking for felony convictions. They said a misdemeanor arrest will not disqualify me. This is the reason why I failed to indicate the offenses. 10. On January 11, 2001, Petitioner wrote the IG stating: This letter is to clarify the incident that happened on the evening of November 11, 1995 at Heroes Night Club, Orlando, Florida. This incident was between a Ms. Monica Pryor and myself. At the time Ms. Pryor and I were dating. At the nightclub, Ms. Pryor and I got into an argument and exchanged harsh words that resulted in us pushing and shoving one another. Ms. Pryor then left the nightclub with her girlfriends. She called my cell phone to inform me that her girlfriends were taking her to the police station. We talked later that evening and apologized to each other. During the conversation, she let me know that she had filed charges against me and there was a warrant out for my arrest and would drop the charges in the morning. As far as I can recall from our conversation, Ms. Pryor didn't suffer any physical bruising from this incident. This is one incident in my life that I deeply regret. I feel that I was in the wrong place at the wrong time, doing the wrong thing. This incident happened over 5 years ago. Since then, I have experienced healthy relationships without any hostile contact involved. I have been blessed to counsel several young people and I've helped young men from making the same mistake that I made. I believe this experience has made me a better person and has given me a testimony to share with others. In the past 7.5 years, I have worked in child development, education and recreation. I have worked with the Boys and Girls Club of Central Florida, Center for Drug Free Living, Orange County Parks and Recreation, and I am presently employed with Orange County Public Schools. I ama member of the New Church of Faith in Orlando, Florida were I've helped with youth banquets and church activities. If you have any questions about my spiritual leadership and commitment, please call Pastor David Beacham at (407) 296-2664. 11. Petitioner testified that even though Ms. Pryor had told him that she would "drop the charges," he elected to plea nolo contendere just to get the matter behind him. 12. On January 19, 2001, Petitioner submitted a second affidavit of Good Moral Character indicating that his record contained "one or more of the disqualifying acts or offenses .," and circled the reference to the domestic violence statute. 13. Ken Davis, of Maynard Evans High School in Orlando, Florida, submitted a letter which observed that Petitioner was a "diligent and conscientious person." 14. Yvette Johnson, Universal Orlando, an occupational health and safety specialist, submitted a letter in which she characterized Petitioner as an "asset to the troubled youth in the community . . . never failing to instill the values desired by the church." 15. Ruthenia Moses, who has a Master's Degree in Social Work from the University of Connecticut, who has worked as a clinical therapist, and who was, at one time, the second in command of the Orange County Work Release Center, testified that Petitioner has "an amazing ability to relate to young people," was a "kind and sincere individual of good moral character. I highly recommend him to anyone who works with young people." She further testified that "if I had a business serving youth at risk I would want Petitioner on her team." 16. Christine Barbery, who has a Master's Degree in Legal Studies from the University of Central Florida and is employed by Florida Department of Children & Families as a Family Services Counselor Supervisor, reports that Petitioner is "responsible, hard-working," "setting an admirable example," "an excellent candidate for a Juvenile Probation Officer-type position." She worked for the Department of Juvenile Justice from 1995-1997 and Department of Children and Families since 1997. She has worked with Petitioner with young people at Maynard Evans High School and finds him "caring and dedicated." She "has no qualms about Petitioner's qualifications to be a probation officer." 17. Gloria P. Cleary, Recreation Specialist, Orange County Parks and Recreation, in a letter, characterized Petitioner as a "very enthusiastic and responsible person." She had observed Petitioner in his role as a recreational leader at Liberty Middle School. She further indicated that she would not hesitate in hiring Petitioner in the future. 18. Petitioner was guilelessly candid in his testimony. He is remorseful and contrite regarding the 1995 domestic violence incident. He has conducted his life since that incident in such a way that rehabilitation is indubitably demonstrated. He has an obvious desire to work with troubled teenagers as a Juvenile Probation Officer.
Conclusions For Petitioner: Charles Brown, pro se 7251 Minippi Drive Orlando, Florida 32818 For Respondent: Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Recommendation It is recommended that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this “Ir day of June, 2001, in Tallahassee, Leon County, Florida. lec 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 10 Filed with the Clerk of the Division of Administrative Hearings this XI day of June, 2001. COPIES FURNISHED: Charles Brown 7251 Minippi Drive Orlando, Florida 32818 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The primary issue for determination is whether Dr. Jones violated provisions of Chapter 458, F.S. by violating terms of his probation, more specifically, those terms requiring attendance at Grand Rounds and monitoring by a local, Board certified pediatrician. If those violations occurred, an appropriate disciplinary action must be determined.
Findings Of Fact Respondent, Dr. Jones, is now, and has been at all relevant periods, a licensed physician in the State of Florida, having been issued license number ME0017104. His practice is located in Seminole, Florida. On April 21, 1986, a Final Order was entered by the Board of Medical Examiners, resolving by an amended stipulation, a twenty-count Administrative Complaint that had been filed against Dr. Jones on December 1, 1983. Pertinent provisions of the Final order included: Placement on probation for a period of five years commencing with the effective date of the order; Attendance at Grand Rounds weekly during probation at both All Children's Hospital in St. Petersburg, Florida and the University of South Florida in Tampa, Florida; and, Monitoring by a local Board-certified pediatrician, John H. Cordes, Jr., M.D., who was to make visits to Dr. Jones' office every two weeks and to randomly select 15 percent of Dr. Jones' medical charts to verify appropriateness of care and thoroughness of record-keeping. Dr. Jones was out of the country, in Antigua, when the order arrived, and it was in his office when he returned on May 4, 1986. Approximately two weeks later, around May 19th, Dr. Jones tried to call Dr. Cordes, the designated monitoring physician, and was told he was out of town. When he reached Dr. Cordes in early June, Dr. Cordes told him that under no circumstances would he serve as his monitoring physician and that he had written a letter to DPR advising them of such. After making some unspecified and unsuccessful efforts to locate a substitute, Dr. Jones contacted Lewis A. Barness, M.D., Chairman of the Department of Pediatrics at the University of South Florida. In a letter to Dr. Jones dated July 11, 1986, Dr. Barness agreed to review "about ten or fifteen percent of your charts on a biweekly basis." (Petitioner's exhibit #4) Dr. Jones was out of the country again the last two weeks of July, and the monitoring by Dr. Barness began on August 15, 1986. Dr. Barness was approved by the Board of Medical Examiners as a substitute on August 2, 1986. Dr. Jones continues to be monitored by Dr. Barness at Dr. Barness' office at the University. Dr. Jones brings his appointment book (although Dr. Barness never reviews it) and his charts, and Dr. Barness pulls, at random, fifteen to twenty percent of the charts and reviews them. Grand Rounds, lectures on pediatric medical topics, are held at 8:00 A.M. on Fridays at the University of South Florida Medical Center, and at 12:30 P.M. on Fridays at All Children's Hospital. Between his receipt of the Final Order and June 15, 1986, (the date specified in the amended complaint) Dr. Jones never attended Grand Rounds at the University of South Florida. He attended once, June 6th, during this period at All Children's Hospital. The basis for non-attendance is specified for each Friday session during the relevant period as follows: May 9, 1986 (the first Friday after Dr. Jones returned and saw the Final Order)--Dr. Jones' van was broken. His wife, a part-time employee at an interior design shop, was called in for work that day, so he did not have transportation. Further, he met with the mother of one of his patients at noon on this date. May 16 and 23, 1986--Dr. Jones' recently-widowed mother was visiting, and since she was also quite ill, he spent time with her. Further, Grand Rounds were cancelled at the University of South Florida on May 16th. May 30, 1986--Dr. Jones' van was again broken and his wife was called to work leaving him without transportation. June 6, 1986--Dr. Jones awoke with gastroenteritis, so he did not attend the morning session at the University of South Florida; he did attend the session at All Children's Hospital. June 13, 1986--Grand Rounds were cancelled at the University of South Florida on this date. Dr. Jones decided to take his children to Disney World as they lived out of state and were leaving the next day. June 15, 1986 was the close of the relevant period regarding attendance at Grand Rounds, according to the Administrative Complaint, as amended. From the testimony and evidence, I am unable to determine conclusively whether Dr. Jones has attended regularly since that date. Except for weekends and the trips out of country, Dr. Jones continued to practice medicine as a pediatrician between April 21, 1986 and July 1986, the date of the Administrative Complaint. He stipulated that he understood the terms and conditions of the Board's Order regarding probation. His testimony at the hearing revealed that he was thoroughly familiar with the details of the order. Nevertheless, he violated the terms of probation. Although he knew that the Board had approved the Stipulation in January 1986, and that the stipulation specified Dr. Cordes as the monitoring physician, he waited until the last minute (two weeks after he received the order) to contact Dr. Cordes about commencing the monitoring. While Dr. Cordes' refusal to participate is not attributable to Dr. Jones, the delay in obtaining a substitute could clearly have been eliminated with better planning by Dr. Jones. Technically, the monitoring conducted by Dr. Barness does not comply with the terms of the probation order, as Dr. Jones brings the charts to him for review. Dr. Barness has impressive credentials and is understandably unable to visit Dr. Jones' office every two weeks. However, Dr. Jones admitted that he never asked the Board to modify the terms of his probation in that regard. Dr. Jones' lack of judgment regarding the terms of probation is also reflected in his uncontroverted excuses for non-attendance at Grand Rounds. With the obvious exception of the cancellation of the lectures, the excuses fail to mitigate the violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: Finding that Respondent, Archbold M. Jones, M.D. violated subsections 458.331(1)(h) and (x) F.S.. Suspending Dr. Jones' license for three months (conforming to the approximate period that he practiced without supervision). Requiring Dr. Jones to appear before the Board with Dr. Barness to outline the details of the monitoring process and insure that proper review can be made at Dr. Barness' office, rather than Dr. Jones' office. Providing for Dr. Jones' immediate notification to the Board in the event Dr. Barness is unable to continue with monitoring consistent with the Board's direction. Outlining specific guidelines for excused non-attendance at Grand Rounds and providing for notification by Dr. Jones to the Board each time he fails to attend, and the reason for such failure. Providing that future violations will result in nullification of the stipulation and immediate proceeding on the original multi-count complaint. Providing that all other terms and conditions of the April 21, 1986 Order remain in full force and effect. DONE and RECOMMENDED this 6th day of July, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3920 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1. Adopted in paragraph #1. 2. Rejected as unnecessary. 3. Adopted in substance in paragraph #2. 4. Rejected as unnecessary. 5-6. Adopted in substance in paragraph #2. 7-8. Adopted in paragraph #7. 9. Adopted in substance in paragraph #4. 10-11. Adopted in paragraph #9. Respondent's Proposed Findings of Fact 1. Adopted in paragraph #1. 2-3. Adopted in substance in paragraph #2. The closing date is addressed in paragraph #7, however the June 15, 1986, date relates only to attendance at Grand Rounds and not to the period during which monitoring did not occur. (See motions to amend complaint.) Adopted in paragraph #3. Adopted in paragraph #6. 7-15. Adopted in substance in paragraph #7. However, the characterization of a "medical emergency" in paragraph #9 is unsupported by the record, as are the characterizations, "justification" for not attending Grand Rounds and "legitimately prevented" from attendance. Respondent was not unable to attend Ground Rounds, except when the rounds were cancelled. He chose rather not to attend for various reasons which to him were more important than his attendance. Adopted in paragraph #4. Adopted in paragraph #5, except however the "diligence" of the search was not established by competent credible evidence. Adopted in substance in paragraph #5. 19-27. Rejected as irrelevant and unnecessary. Rejected as unsupported by competent, substantial evidence. Rejected as immaterial. Rejected as contrary to the weight of the evidence. Adopted in paragraph 9. Rejected as cumulative and unnecessary. The "diligence" is unsupported by competent credible evidence. Rejected as immaterial. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael I. Schwartz, Esquire Suite 100, Capitol Office Center 119 North Monroe Street Tallahassee, Florida 32301
The Issue Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: On January 2, 1977, Officer J.W. Carlyle of the Jacksonville Beach Police Department, Jacksonville Beach, Florida, acting in an undercover capacity, purchased from the licensee for $10.00, six capsules of what the licensee represented to him to be mescaline, which was in fact liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time the licensee threw to the ground, a vial containing six foil packets which upon analysis proved to be phenoharbitol, a controlled substance. Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: Licensee was charged with felony of possession of a controlled substance, to wit: phenobarbital, in Case No. 77-249 CFS in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication was withheld and she was placed on probation for a period of two years, with a special condition that she enroll and follow through with a drug treatment program, in- patient if necessary. There were several other substantive violations found in the Administrative Complaint, specifically in paragraphs 1, 2 and 5 of that complaint. These substantive paragraphs were withdrawn from consideration upon the Motion to Withdraw by the Petitioner's attorney and the agreement of the Respondent's attorney.
Findings Of Fact Theresa Kathleen Stewart, R.N., holds License No. 73310-2, with the State of Florida, Board of Nursing. In the course of the hearing, the following factual stipulation was entered into between the parties: On January 2, 1977, Officer J. W. Carlyle of the Jacksonville Beach Police Department, acting in an undercover capacity, purchased from the licensee for $10.00 six capsules of what the licensee represented to be mescaline. In fact, the substance was liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time, (January 2, 1977), the licensee threw to the ground the vial containing six foil packets which upon analysis proved to be phenobarbital, a controlled substance. The charges brought from the arrest for the possession and sale of the alleged mescaline were dropped when the chemical analysis of the substances proved them to be liver pills and/or vitamins. Out of the events of January 2, 1977, the licensee was charged with a felony of possession of a controlled substance, to wit: phenobarbital, in Case NO. 77-249 CFS, in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication of guilt was withheld and she was placed on probation for a period of two years with a special condition that she enroll and follow through with a drug treatment program, in-patient if necessary. Based upon the facts recited, the Petitioner claims that the Respondent has violated 464.21(1)(b)(c) and (d), F.S. which states: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (b) Unprofessional conduct which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding, actual injury need not be established." An examination of the facts stipulated to as the basis for consideration of this case, do not constitute a sufficient showing that the Respondent has been guilty of unprofessional conduct within the meaning of 464.21(1)(b), F.S. The second substantive violation alleged by the Petitioner pertains to 464.21(1)(c), F.S., which reads as follows: "GROUNDS FOR DISCIPLINE.-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (c) Habitual intemperance or addiction to the use of controlled substances as set forth in chapter 893." Again, an analysis of the facts presented did not warrant the conclusion that the Respondent is guilty of habitual intemperance or addiction to the use of controlled substances found in 893, F.S. The third substantive violation asserted by the Petitioner pertains to 464.21(1)(d), F.S., whose provisions are: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (d) Engaging in the possession, sale or distribution of controlled substances as set forth in chapter 893, [for any other than legitimate purposes]." The facts agreed to in this cause establish that the Respondent was in possession of a controlled substance as set forth in 893, F.S., for other than legitimate purposes. Therefore, the licensee is held accountable for the penalties which may be imposed from such possession.
Recommendation At the conclusion of the factual stipulation, the parties were given an opportunity to present matters in aggravation and mitigation. Counsel for the Petitioner waived the opportunity to submit matters in aggravation. The Respondent presented mitigation. Some of the items of mitigation may be found in the Respondent's Exhibits 1 through 3 admitted into evidence. Exhibit 1 is a letter from a counselor with the Peninsula Manpower Training Skills Center in Hampton, Virginia. This letter states that the Respondent is enrolled in a horticulture class at the Vocational Technical Education Center of Hampton, Virginia, and is maintaining excellent grades and attendance standards. It also states that Respondent is working part-time at a local florist. The second Respondent's exhibit is a letter from the Commonwealth of Virginia, Department of Corrections, Division of Probation and Parole Service, District 19. This is a letter from the Probation/Parole Officer, Drug/Alcohol Specialist, who states that the Respondent is doing well in her probation period. The final Exhibit No. 3, by Respondent, is a letter from a Rehabilitation Counselor with the Drug Rehabilitation Program of the City of Hampton, Virginia, which shows that Respondent is progressing well in the drug rehabilitation program. Respondent at present lives with her husband and eighteen months old child. It is the Respondent's desire that she be given probation for the offense, in order to allow her a clean record, should she apply for a license to be a registered nurse in the State of Virginia. It is her intention to make such application if possible. After considering the nature of the factual stipulation and the matters offered in mitigation, it is recommended that the license of Respondent to practice nursing in the State of Florida be suspended for a period of two years. DONE and ENTERED this 25th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Herbert V. Kelly, Jr., Esquire 2600 Washington Avenue First and Merchants National Bank Building Post Office Box 78 Newport News, Virginia 23607 Ms. Theresa Kathleen Stewart 5927 Madison Avenue Newport News, Virginia 23605 William Travis, Esquire 4611 Pinewood Road Jacksonville, Florida 32210
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since January 5, 1981, a medical doctor licensed to practice medicine in the State of Florida. His license number is ME 0037656. In or about February of 1988, a complaint was made against Respondent alleging that he engaged, or attempted to engage, in the practice of medicine in this state without an active Florida license. The complaint was reviewed by the Probable Cause Panel of the Board, which disposed of the matter by issuing, on April 23, 1988, the following Closing Order: THE COMPLAINT: Complainant alleges that the Subject of the investigation practiced or attempted to practice medicine without an active license in violation of Section 458.327 (1)(a), Florida Statutes. THE FACTS: Investigation substantiated the allegations in that Subject's license to practice medicine expired December 31, 1987, and was placed in an inactive status. Subject practiced medicine with an inactive license until approximately February 5, 1988, before he took steps to renew his license. THE LAW: Based on the foregoing, there is sufficient evidence to support a finding of probable cause that Subject violated Section 458.327(1)(a), Florida Statutes, and there- fore is in violation of Section 458.331(1)(x), Florida Statutes. However, as Subject's license was inactive for a period of less than six months, this case should be closed by issuing Subject a Letter of Guidance. It is, therefore, ORDERED that the complaint be, and the same is hereby CLOSED with a Letter of Guidance. In January of 1991, the Agency's predecessor, the Department of Professional Regulation, issued a 22-count Administrative Complaint against Respondent alleging that, in connection with his dealings with 11 patients in 1989 and 1990, Respondent violated subsections (1)(g)(Counts Twenty-One and Twenty-Two), (1)(m)(Counts Ten, Thirteen and Eighteen), (1)(q)(Counts Two, Five, Eight, Eleven, Fifteen and Nineteen), (1)(t)(Counts One, Four, Seven, Twelve, Fourteen, Sixteen and Twenty) and (1)(v)(Counts Three, Six, Nine and Seventeen) of Section 458.331, Florida Statutes. Proceedings on these allegations were conducted in accordance with Section 120.57(2), Florida Statutes. On August 24, 1992, the Board issued a Final Order finding Respondent guilty of the violations alleged in each of the 22 counts of the Administrative Complaint and disciplining him for having committed these violations. That portion of the Final Order addressing the Respondent's punishment provided, in pertinent part, as follows: IT IS HEREBY ORDERED AND ADJUDGED: Respondent's license to practice medicine is REPRIMANDED. Respondent shall pay an administrative fine in the amount of $5000 to the Board of Medicine, Department of Professional Regula- tion, within 3 years of the date this Final Order is filed. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 3 years, subject to the follow- ing terms and conditions: . . . f. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probation Committee. Absent provision for and comp- liance with the terms regarding temporary approval of a monitoring physician, as provided below, Respondent shall cease pract- ice and not practice until the Probation Comm- ittee or the Board approves a monitoring physician. Respondent shall have the monitoring physician with Respondent at the first probation appearance before the Probation Committee. Prior to the approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Comp- laint and Final Order filed in this case. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee meeting shall constitute a violation of this Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received by the Board office no later than fourteen days before the first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of the monitoring physician shall include: Submit semi-annual reports, in affidavit form, which shall include: Brief statement of why physician is on probation. Description of probationer's practice. Brief statement of probationer's comp- liance with terms of probation. Brief description of probationer's relationship with monitoring physician. Detail any problems which may have arisen with probationer. Respondent shall be responsible for ensuring that the monitoring physician submits the required reports. Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month. Review 50 percent of Respondent's patient records selected on a random basis at least once every other month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every other month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician. Review all patient records of patients treated with Schedule II-V controlled substances. Receive and review copies of all Schedule II-V controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of controlled substances. Report to the Board any violations by probationer of Chapters 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. . . Respondent shall submit semi-annual reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include: Brief statement of why physician is on probation. Practice location. Describe current practice (type and composition). Brief statement of compliance with probation terms. Describe relationship with monitoring/ supervisory physician. Advise Board of any problems. . . Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below: Respondent shall utilize sequentially numbered triplicate prescriptions in the prescribing of said controlled substances. Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days. Respondent shall, within two weeks after issuance, provide one copy of each prescription for said controlled substances to his monitoring/supervising physician. Respondent shall maintain one copy of each prescription for said controlled sub- stances in the patient's medical record. This copy may be a xerox copy. During this period of probation, semi- annual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine. . . . At a meeting held November 18, 1992, Respondent received the approval of the Probation Committee to have Oliver Anderson, M.D., serve as his monitoring physician. Both Respondent and Dr. Anderson appeared before the Probation Committee at this November 18, 1992, meeting. Dr. Anderson is in his late seventies. Like Respondent, he has a general family practice. He and Respondent have known each other for over ten years. Dr. Anderson first visited Respondent's office, in his capacity as Respondent's monitoring physician, in February of 1993. At the outset of the visit, Dr. Anderson asked for, and was given, a list of all the patients that Respondent had seen in the last two months. From the list, he randomly selected the names of 71 patients (which was one half the number of patients on the list). He then obtained from Respondent, and thereafter reviewed, the records Respondent maintained on these 71 patients. Dahna Schaublin, a Department investigator, was assigned to serve as Respondent's probation monitor. On or about February 10, 1993, she prepared and transmitted to her supervisor, Crystal Griffin, an investigative report concerning Respondent's compliance with the terms and conditions of his probation. In her report, Schaublin stated the following: A Final Order was filed on 8/24/92 regarding John Jackson, M.D. for prescribing Dilaudid to patients in 1989, violating FS. 458.331 (1)(q)(v). The Probation term is 08/24/92 to 08/23/95. Dr. Jackson was contacted and presented to the Miami BIS on 01/27/93 for an interview. He brought copies of prescript- ions for controlled drugs prescribed in Dec/ 1992-Jan/1993. Dr. Jackson did not have copies of other prescriptions with him stating he mailed one copy to the Board of Medicine and one copy to his physician monitor. Dr. Anderson, a family practitioner, is supervis- ing physician. Dr. Anderson has only been to Dr. Jackson's office on one occasion (the Order states he should review 50 percent of patient records on a random basis, and shall go to Dr. Jackson's office once every other month). Dr. Jackson decided to xerox each daily chart for each patient seen in the office and then mail Dr. Anderson a copy of the treatment chart (for that one occasion). Dr. Jackson stated that the reason he is not following the Order to the letter is because it was difficult for Dr. Anderson to review 50 percent of his patient records in person every month. We told Dr. Jackson this practice was contrary to the Final Order and we suggested he inform the Probation Committee. Dr. Jackson has not paid his $5000 yet, stating that he has 5 years to do so. Dr. Jackson has gone before the Probation Committee two times. Griffin inadvertently failed to forward Schaublin's investigative report to the Probation Committee. Accordingly, the Probation Committee took no action in response to the allegations made in the report. Respondent did not provide Schaublin with copies of prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order. It was not until April 14, 1993, that Respondent furnished Schaublin with copies of these prescriptions (which were written on numbered prescription forms). Respondent wrote prescription numbers 1041 through 1047 in April and May of 1993 (more specifically, prescription number 1041 on April 12, 1993; prescription number 1042 on April 14, 1993; prescription number 1043 on April 24, 1993; prescription number 1044 on April 26, 1993; prescription number 1045 on April 30, 1993; prescription number 1046 on May 2, 1993; and prescription number 1047 on May 12, 1993). These prescriptions were not among those that Respondent furnished copies of to Schaublin on April 14, 1993, however, none of them were written 30 days or more prior to April 14, 1993. On or about March 17, 1993, Respondent submitted his first semi-annual probation report to the Department. In the fourth paragraph of his report, Respondent asserted the following: I have complied fully with the terms of my probation. I have taken the course "Protecting your Practice" at the University of South Florida. I meet as scheduled with my monitoring physician Dr. O.D. Anderson whose letter will be Coming soon to you. We cover for each other every week taking calls on Wednesdays for Dr. Anderson and Thursdays for myself. We also alternate taking calls for each other every other weekend. We discuss patient care, as per the order, for all scheduled prescriptions written. In his report, Respondent did not indicate that there were "any problems" concerning Dr. Anderson's compliance with the provisions of the Board's August 24, 1992, Final Order which prescribed the responsibilities of Respondent's monitoring physician. Dr. Anderson submitted to the Department his first semi-annual report concerning Respondent's probation on or about June 13, 1993. In the third, fourth and fifth paragraphs of his report, Dr. Anderson asserted the following: In my opinion, Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his good attitude in my visits with him, and in his compliance with providing for me duplicate copies of his Numbered Schedule II-V prescriptions. Dr. Jackson and his office personnel have been very responsive in allowing my random selection of charts for review on my visits to his office. With his wife's support, Dr. Jackson has complied well with the requirements of his probation. Although he indicated otherwise in his report, Dr. Anderson had made only one visit to Respondent's office in his capacity as Respondent's monitoring physician. It was not until September of 1993, that he next visited Respondent's office in his capacity as Respondent's monitoring physician. In conducting his review during this visit, he followed essentially the same procedure that he had followed during his February visit. In September of 1993, Respondent filed with the Board a Petition for Early Termination of Probation on the grounds of "1) hardship due to changed circumstances; and 2) fulfillment of purposes of penalty." In his petition, Respondent asserted that he had "fully complied with the requirements of probation with the exception of the fine." He did not mention that he had failed to provide Schaublin with copies of the prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order or that Dr. Anderson had failed to make the number of office visits required by paragraph 3f(3) of the Final Order. Dr. Anderson wrote a letter, dated October 21, 1993, in support of Respondent's petition. The letter read as follows: This is an interim report following the first semi-annual report dated May 19, 1993, which I submitted. I was appointed monitoring physician for Dr. Jackson at the Miami November 18, 1992, meeting of the Probation Committee of the Department of Professional Regulation. Again I have reviewed the Administrative Complaint dated January 24, 1991, and also the Notice of Right to Judicial Review, and Certificate of Service signed August 24, 1992, which were received by Dr. Jackson. He is on probation for the inappropriate prescribing of Dilaudid to eleven patients in 1989. Dr. Jackson continues his good care of his private patients, and the Insurance PPO and HMO patients here in Hialeah, Florida. In my opinion Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his continuing compliance with providing for me the duplicate copies of his Numbered Schedule II-V prescriptions. Dr. Jackson continues to be very responsive in allowing my random selection of charts for review on my visits to his office. Dr. Jackson continues to be very aware of which medications fall into Schedule II-V. We both have copies of the Drug Abuse Prevent- ion and Control Schedule II-V list. This letter is written to support Dr. Jackson's release from probation. In my opinion he is worthy of release as demonstrated by his continuing compliance. The Board considered Respondent's petition at its October 1-3, 1993, meeting. Both Respondent and Dr. Anderson addressed the Board during this meeting. Dr. Anderson told the Board that, in his opinion, Respondent had "corrected all his past difficulties very effectively." By letter dated October 6, 1993, from Crystal Griffin, Respondent was informed of the Board's action. The letter read as follows: This is to inform you that the Florida Board of Medicine, in a meeting held October 1-3, 1993, . . voted to: Terminate your probation; however, you will be required to pay your administrative fine by August, 1995 and complete 300 hours of community service per year for a period of 2 years. Furthermore, you are required to submit a plan for your community service. You should receive an Order shortly. If you have any questions regarding this matter, please feel free to contact the Board office at (904) 488-0595. Sometime after the Board's October 1-3, 1993, meeting, but before the Board had issued the written order promised in Griffin's October 6, 1993, letter to Respondent, Schaublin first learned about Respondent's petition and the Board's action thereon. Thereafter, on December 7, 1993, she filed an investigative report concerning Respondent's compliance with the terms and conditions of his probation from the time of her last investigative report. In her December 7, 1993, report, she stated the following: Monitoring of the Subject's Probation is impeded because Dr. Jackson's failed to comply with terms of the Probation Order. The Final Order states: "k. Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below: (2) Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days." Dr. Jackson: Did not provide copies of controlled substances prescriptions for February/March until April 14, 1993. There are 6 missing prescription forms from numbers 1041 to 1047. Dr. Jackson has failed to provide prescriptions for October/November 1993. This investigator met with Dr. Jackson at the Miami BIS on January 27, 1993 and requested copies of prescriptions be sent to this office within the 30 day time frame as mandated in the Final Order. A U.C.F. was issued by this Investigator on 12/7/93. This Investigator spoke with Constance Campbell on December 06, 1993 regarding Dr. Jackson's lack of compliance with the terms of the Final Order. We reported on 2/10/93 that Dr. Jackson's monitoring physician was not visiting his office "every other month" and making "random selection of the record[s]" as outlined in the Final Order f.(3). We are attaching copies of prescriptions for Controlled drugs for the months February 1993 through September 1993. On May 24, 1994, the Board issued a written order terminating Respondent's probation. The order provided as follows: THIS CAUSE came on before the Board of Medicine (Board) on October 3, 1993, in Miami, Florida for the purpose of considering Respondent's request to terminate the probation imposed by the Board's Final Order filed August 2 [sic], 1992. Upon review of the request, the testimony and evidence offered in support thereof, the recommendation of the Board's Probation Committee, and being otherwise fully advised in the premises, IT IS HEREBY ORDERED AND ADJUDGED that Respondent's probation shall be terminated. However, Respondent is still required to pay the administrative fine of $5,000.00 imposed by the previous Final Order and said fine must be paid by August 2, 1995. Furthermore, Respondent is required to complete 300 hours per year of community service in an area where medical services are needed during each of the next two years. This Order shall take effect upon filing with the Clerk of the Department of Professional Regulation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order finding Respondent guilty of the violations of subsection (1)(x) of Section 458.331, Florida Statutes, alleged in the Amended Administrative Complaint, with the exception of the alleged violation relating to the submission of copies of prescription numbers 1041-1047, and disciplining him for having committed these violations by fining him $2,500.00, suspending his license for a period of 30 days and placing him on probation for a period of two years (subject to those terms and conditions the Board deems appropriate) beginning immediately after the end of the suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of December, 1995. 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 December, 1995.
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent stipulated that the Petitioner has standing to institute this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Rule 33-7.005, Florida Administrative Code. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution." Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989). Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights. --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). The Challenged Rule provides, in pertinent part: Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody. All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . . The Respondent releases approximately 40,000 to 45, 000 inmates each year. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.
The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
