Findings Of Fact Petitioner filed an application for licensure as a Class "F" Unarmed Security Guard. Question numbered 13 on that application form is as follows: "Have you ever been arrested? If yes, list any and all arrests and dispositions." Petitioner replied affirmatively and advised that in April, 1962, he had been charged with breaking and entering in Broward County and had served a three and one-half year sentence. He further advised that he had received a pardon from Governor Askew with permission to bear firearms. Petitioner did not report any other arrests or charges, since he believed that only felonies were required to be reported. The report moved into evidence by the Respondent lists various governmental entities as contributors of fingerprints at times when Petitioner was either "arrested or received" on several charges and the disposition of each. According to that report, Petitioner was either "arrested or received" by the police department in Youngstown, Ohio, in 1952 for carrying concealed weapons. Petitioner never knew he was charged with that crime, although he does recall that at that time he was working for a railroad and there was some type of incident with the police due to the fact that he and other railroad employees were carrying mace and blackjacks. The report further reflects that in 1961 Petitioner was "arrested or received" on several breaking and entering charges by law enforcement entities in St. Petersburg, West Palm Beach, and Raiford, Florida, and that he was sentenced to a prison term. Respondent presented no evidence to indicate that any of the breaking and entering charges were other than the crime(s) for which Petitioner has received a pardon. The report further indicates that Petitioner was "arrested or received" by the police department in Fort Lauderdale, Florida, in 1968 for contempt of court, for which he was fined, and in 1970 for a "worthless check (warr)," for which he was also fined. Regarding the contempt of court charge, Petitioner was in a different courtroom on a different case, but the record is devoid of any evidence as to the type of matters involved. As to the worthless check, Petitioner attempted to redeem the check the following day, but found that he was too late.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A Final Order be entered approving Petitioner's application for an Unarmed Security Guard License. RECOMMENDED this 3rd day of December, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1980. COPIES FURNISHED: Mr. Edward S. Narbut 317 South East 12th Avenue, Apt. 2 Pompano Beach, Florida 33060 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license and a Class "G" statewide firearms license. He has held the former license since May of 1990 and the latter license since September of that year. He has never before been disciplined by the Department. From October of 1991, until June 23, 1993, Respondent was employed by Certified Security Services, Incorporated (hereinafter referred to as "Certified"), a business which provides armed and unarmed security services. Among Certified's clients during the period of Respondent's employment was Winn-Dixie Store No. 343 (hereinafter referred to as "Store 343"), located at 14900 Northwest 6th Avenue in Miami, Florida. Respondent was assigned by Certified to work as a uniformed security guard at Store 343. He regularly drove a cashier at the store named Maria home from work in his car. On the afternoon of June 23, 1993, at around 1:00 or 2:00 p.m., Respondent was standing in the store parking lot conversing with a patron of the store, Sylvia Malgarejo, when he was approached by Maria, who was carrying a package containing a box of Pampers and a bottle of cooking oil. Respondent had no reason to, nor did he, believe that Maria had misappropriated these items from the store. Maria asked Respondent to put the package in his car. Respondent complied with Maria's request. He then continued his conversation with Malgarejo. The conversation did not last long. Olga Campos-Campbell, the store's general merchandise manager, had reported to the store manager that Respondent had shoplifted merchandise from the store. Campos-Campbell and Respondent had an ongoing feud concerning the scope of Respondent's job responsibilities. Campos-Campbell frequently asked Respondent to do things that he believed were outside the scope of his duties as a security guard, and an argument between the two invariably ensued. Based upon Campos-Campbell's erroneous report, the store manager had Respondent detained. Kent Jurney, who assisted the owner of Certified, his wife, in running the business, was contacted and advised of the situation. Jurney responded by going to the store with Certified's general manager, Bill Banco, and confronting Respondent. Respondent's native language is Spanish. Jurney, on the other hand, does not speak or understand Spanish. He communicates in English. Respondent's ability to communicate in English, however, is limited. Respondent tried to explain to Jurney in English how he had come into possession of the Pampers and cooking oil, but Jurney misunderstood him and mistakenly thought that Respondent was admitting that he had stolen the items from the store. Accordingly, he advised Respondent that Respondent's employment with Certified was being terminated effective immediately. The police were also contacted. The police officer who responded to the scene cited Respondent for shoplifting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding the evidence insufficient to establish that Respondent committed the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the instant Administrative Complaint and dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. 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 14th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6941 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by Respondent in his post-hearing submittal: 1. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-5. Rejected as findings of fact because they are more in the nature of summaries of testimony elicited at hearing than findings of fact based upon such testimony. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 C. Ernest Rennella, Esquire 2524 Northwest 7th Street Miami, Florida 33125 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Ozell Barnes applied for a license as an armed and unarmed guard. He was granted an unarmed guard license. Barnes is employed as a caretaker/gardener at a nursing home for the elderly. Barnes' employer has no requirement for an armed guard, and Barnes' duties do not require him to be armed. Barnes is a remarkable man who, as a black deaf-mute, supports himself and his family in a regular competitive job. Because of his deafness, his written communication is often initially unclear to those not familiar with it; however, having met Mr. Barnes and having observed him during the hearing, the Hearing Officer finds that he is intelligent, well-oriented, and perceptive. Barnes qualified with a pistol; however, his instructor was not approved by the Department of State, Division of Licensing, as required by the statutes and rules. Barnes suffers from hypertension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner's application for licensure as an armed guard be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of December, 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1979. COPIES FURNISHED: W.J. Gladwin, Jr., Esq. Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Ozell Barnes 3009 Carver Street Fort Pierce, Florida 33450
Findings Of Fact The Petitioner, James Lewis Shelton, applied for licensure as a Class "F" unarmed guard. Shelton answered Question 13 on the application yes, reporting an arrest for disorderly (conduct) in 1968. The records check of the Department of State revealed that Shelton had been arrested for the offenses listed in the denial letter, Exhibit 2. Shelton admitted that this record was true and accurate. Shelton's supervisor on his security job, who is also his minister, Dr. Robert A. Plank, testified regarding his knowledge of Shelton. Plank had been Shelton's minister for approximately two years, and for the last five months Shelton has worked for him as a security guard. Plank stated that when he became aware of the charges against Shelton he investigated them as thoroughly as he could. He then questioned Shelton about the arrests. He found that Shelton could only remember these events vaguely after Plank refreshed his memory with facts from documents Plank had obtained from the authorities. Plank had found in working with Shelton as his minister and his supervisor that Shelton was mentally slow. Shelton is an orphan with a sixth grade education, who has been an itinerate for much of his life. Shelton only was able to remember his marriage to a woman after Plank refreshed his memory with facts from the letter of denial. Shelton is currently employed as a dishwasher and as a guard with the company by which Plank is employed. Shelton works hard, follows his instructions and is a good worker. Plank concluded that because of his mental slowness Shelton had not remembered these arrests, and had not willfully misrepresented the information on his application. Plank's wife, who is the shift supervisor for whom Shelton works, substantiated her husband's testimony. Shelton has lived in St. Petersburg for 12 years, the the records there reflect no arrests. Shelton is mentally slow and has difficulty recalling past events. This finding is based upon the testimony of the Planks and observations of Shelton's demeanor at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State issue a license as an unarmed guard to James Shelton; however, the Hearing Officer would recommend that this applicant's records be annotated that an armed guard license not be issued without rehearing, and this his employer be directed not to employ Shelton as an armed guard without licensure as such. DONE and ORDERED this 15th day of February, 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. James Lewis Shelton 8894 68th Street, North Pinellas Park, Florida
Findings Of Fact The proceeding came on for hearing on the Petitioner's application for an armed security guard license. The Respondent, Department of State/Division of Licensing, is an agency of the State of Florida having jurisdiction over the licensing and regulation of security guards. The Respondent, on February 15, 1982, served notice on the Petitioner that it intended to deny his application for license, the Petitioner requested a hearing and the cause was set for hearing as delineated in the notice. Upon timely convening the hearing at 2:00 p.m. on April 28, 1982, the Petitioner failed to appear. The undersigned and the Respondent and the Respondent's witness remained in the hearing room for approximately one hour in hopes that the Petitioner might appear. The Petitioner failed to appear. The undersigned entered on the record the fact of the Petitioner's default and the fact that all concerned remained in the hearing room awaiting the Petitioner's arrival for approximately one hour. Thereupon the hearing was adjourned.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is therefore RECOMMENDED: That the petition of Karl Harry Wilson be DISMISSED. DONE and ENTERED this 22nd day of July, 1982 at Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of July, 1982. COPIES FURNISHED: Mr. Karl Harry Wilson Aquarius Restaurant Aquarius Condominium Route A1A 2751 South Ocean Drive Hollywood, Florida 33019 Stephan Nall, Esquire General Counsel Department of State The Capitol Tallahassee, Florida 32301 Donald Hazelton, Director Division of Licensing Department of State Winchester Building Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of the commission of an act of violence or the use of force on any person except in the lawful protection of oneself or another from physical harm.
Findings Of Fact Respondent holds the following licenses: Class "D" Security Officer, Class "G" Statewide Firearm License, and Class "MB" Security Agency Manager. He has held the Class "D" and "G" licenses since September 22, 1992. He has held the Class "MB" license since January 22, 1993. By an Emergency Order of Suspension entered March 4, 1993, Petitioner suspended all three licenses held by Respondent. The suspension was based on Respondent's arrest on February 26, 1993, for aggravated assault with a deadly weapon upon Kimo Little, such act not being in defense of self or another. Respondent is employed by Castlewatch Security Company, where he has worked for one year and three months. For about one and one-half years, Respondent has been negotiating with the current owner of the company for the purchase of the company. Respondent has an associates degree in business from Penn State University. He has been employed in the security business, in and outside Florida, for a little more than six years. In the course of performing his security guard work, Respondent regularly uses a Citizens Band radio in order to maintain contact with security guards in the field, when Respondent is not in the field, or with the main office, when Respondent is in the field. Security guards with other companies also use the CB radio in this fashion, and frequently conversations among security guards take place during the evening hours. On the evening of February 25, 1993, Respondent was on- duty, alone, at Roger Dean Chevrolet. At about 10:30 pm, he witnessed a bad car accident, which left him in an agitated state due to the seriousness of the injuries that he observed. About one-half to one hour later, Respondent was on the CB radio when he overheard Kimo Little and another man engaged in a hostile conversation involving swearing and cutting off the conversations of other security guards. Respondent intervened, advising the main perpetrator, Mr. Little, to discontinue the conversation, or at least the swearing. The conversation between Respondent and Mr. Little became heated. Eventually, they agreed to settle their differences 1/ by fisticuffs at the parking lot of a closed McDonald's. Respondent had not previously arranged fights by way of CB radio. However, on at least two or three occasions, Mr. Little has detected differences of opinion between him and other users of the CB radio and determined the differences to be of such gravity as to require their settlement through combat. While still on the radio with Respondent, Mr. Little stated that he intended to "kick [Respondent's] ass." Mr. Little also explicitly informed Respondent that the fight was to be a "fair fight" without guns. Mr. Little beckoned a friend, Paul LeClair, to drive Mr. Little to the McDonald's for the fight. It is unclear why Respondent went to meet Mr. Little except to fight. At the time, Mr. Little neither knew Respondent's identity or where he worked. When Respondent was relieved at about 11:30 pm, he drove his utility vehicle over to the dimly lit, empty parking lot of the McDonald's. After a quick tour of the parking area, Respondent saw no one and was driving toward the exit when Messrs. Little and LeClair appeared in the latter's truck. In a clearly irritated tone, Mr. Little advised Respondent by radio, "I see you. I'm going to hunt you down like a dog." He then jumped out of Mr. LeClair's vehicle and ran toward Respondent's vehicle, waving his arms in an angry, beckoning fashion. Although Respondent could have left the parking lot, he instead turned his vehicle around and drove toward Mr. Little. As he approached Mr. Little, he got a good view of his adversary. Mr. Little is six feet tall and a menacing 270 pounds. Somewhat smaller than Mr. Little, Respondent quickly surveyed Mr. Little's superior size and enthusiasm, as evidenced by his shouting to the approaching Respondent: "I'm going to tear your fucking head off." Respondent also noted Mr. Little's potential ally, Mr. LeClair, who was standing beside his truck. Respondent quickly decided not to fight Mr. Little. Instead, Respondent drew the 9 mm handgun that he keeps on hand for security work, aimed it at Mr. Little, and warned him, "Come any closer and I'll blow you away." He added for emphasis, "Back off, motherfucker." The distance between the two gentlemen was about three meters. Undaunted by the weapon, Mr. Little implored Respondent, "Just get out of the truck and put the gun away. I'll whip your ass like a man." However, Respondent chose instead to leave the parking area. As he drove away, he called the police and informed them of the situation. Shortly thereafter, the Cape Coral police arrested Respondent, after determining that he had drawn his weapon but had not seen a weapon on Mr. Little. There is no evidence that any criminal case has been initiated or prosecuted.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State, Division of Licensing, enter a final order dismissing the Emergency Order of Suspension. ENTERED on April 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1993.
The Issue Whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner in violation of the Florida Civil Rights Act of 1992 (Sections 760.01 through 760.11, Florida Statutes.)1
Findings Of Fact Respondent is a political subdivision of the State of Florida with over 50 departments and 30,000 employees. GSA is the Respondent’s department responsible for providing security to other county departments and facilities. GSA provides security services by contracting with private vendors. At the times relevant to this proceeding, GSA had contracts with approximately seven separate vendors to provide security guards where needed. One of the vendors is Security Alliance, which is a private company that provides security guards to both public and private entities. In 2004, GSA, on behalf of Respondent, entered into a contract with Security Alliance. The “General Terms and Conditions” of the bid document, which were incorporated into the contract between Respondent and Security Alliance, pertained to the responsibility of the vendor as an employer and provided as follows in Section 1.16: The employee(s) of the successful Bidder shall be considered at all times its employee(s) and not employee(s) or agent(s) of the County or any of its departments. . . . The County may require the successful bidder to remove any employee it deems unacceptable. . . . Security Alliance hired the security guards that were assigned to County posts. Only Security Alliance had the authority to terminate one of its employees. Respondent had no authority to terminate the employment of any Security Alliance employee. Security Alliance paid the salaries and the employment taxes of the security guards it employed to work on County posts. Security Alliance administered their annual and sick leave. Security Alliance supervisors monitored the daily activities of the Security Alliance security guards assigned to the various County facilities. Security Alliance employed approximately 250 security guards to service the contract it had with Respondent. As noted above, the contract between Respondent and Security Alliance gave Respondent the authority to require Security Alliance to remove a security guard from a County post if Respondent deemed the security guard’s performance to be unacceptable. Respondent could require that a particular security guard not be assigned to specific County posts. Respondent could also require that a particular security guard not be assigned to any County post. Security Alliance could assign the security guard to other duties with Respondent (depending on the Respondent’s instructions to Security Alliance) or with other clients. Petitioner is a black male whose national origin is Haitian. In 2003, Security Alliance hired Petitioner as a security guard and assigned him to work at facilities operated by Respondent’s Water and Sewer Authority (WASA). Petitioner was one of between 30-to-50 security guards assigned by Security Alliance to WASA facilities. The Preston Water Treatment Plant (Preston Plant) is a water purification and distribution facility operated by WASA. The Preston Plant runs around the clock and is considered by Respondent to be critical infrastructure. Security must be maintained at the Preston Plant at all times because of the need for a safe water supply and because dangerous chemicals are maintained there. On October 16, 2006, Michael Breaux, a white male, was employed by WASA as a Security Supervisor. His duties included monitoring the performance of guards assigned to security posts at WASA facilities. On October 16, 2006, Mr. Breaux conducted a routine check of the security posts at the Preston Plant. Mr. Breaux observed the security guard at the front gate slumped over his chair with his back to the gate. That security guard was subsequently identified as Petitioner. Mr. Breaux observed that Petitioner was inattentive. Mr. Breaux testified, credibly, that Petitioner’s lack of attention to duty posed a security risk. Nick Chernichco, Mr. Breaux’s supervisor, told Mr. Breaux to report his observations to Mr. Wolfe, who was the GSA security manager. Mr. Breaux reported his observations to Mr. Wolfe orally and in writing. Mr. Wolfe is a white male. When he reported his observations to Mr. Wolfe, Mr. Breaux did not know Petitioner’s national origin. Petitioner failed to establish that Mr. Breaux's actions following his observations of Petitioner at the guard station were motivated by Petitioner’s race or national origin.5 Mr. Wolfe did not meet with or talk to Petitioner in October 2006. After speaking to Mr. Breaux and reviewing the written report Mr. Breaux generated, Mr. Wolfe instructed the Security Alliance manager (Al Martin) not to assign Petitioner to a WASA facility. Mr. Wolfe took that action based on Mr. Breaux’s opinion that Petitioner’s lack of attention created a security risk. Petitioner failed to establish that Mr. Wolfe’s action was motivated by Petitioner’s race or national origin.6 After Mr. Wolf’s instruction to Mr. Martin, Security Alliance could have assigned Petitioner to any County facility other than a WASA facility or to another Security Alliance client. On May 17, 2007, Mr. Wolfe conducted rounds to check on security personnel at various County facilities. He came upon a security guard at the pump station located at 911 Northwest 67th Avenue, Miami, which is a WASA facility. The greater weight of the credible evidence established that Mr. Wolfe did not remember Petitioner, who was the security guard he met. Mr. Wolfe observed that Petitioner was in violation of the uniform policy and had unauthorized reading material at his post. Mr. Wolfe returned to his office and proceeded to reduce to writing what he had observed. While preparing his memorandum Mr. Wolfe realized that Respondent had instructed Security Alliance not to use Petitioner at any WASA facility. Because of that prior order, with which Security Alliance had failed to comply, Mr. Wolfe informed Security Alliance of his observations, instructed Security Alliance not to use Petitioner as a security guard for any County post, and imposed a fine against Security Alliance in the amount of $1,800.00. Mr. Wolfe had no interest whether Petitioner retained his employment with Security Alliance and he did not intend to interfere with that employment, as long as Security Alliance did not assign Petitioner to a County post. Petitioner failed to establish that Mr. Wolfe’s actions following his observations on May 17, 2007, were motivated by Petitioner’s race or national origin. On or shortly after May 17, 2007, Security Alliance terminated Petitioner’s employment for failing to adhere to its policies. Brunelle Dangerville filed a Charge of Discrimination against Respondent. That complaint, together with Mr. Dangerville’s testimony, established that Mr. Dangerville and Petitioner were not similarly situated employees. Consequently, the claims raised by Mr. Dangerville’s Charge of Discrimination are irrelevant to this proceeding. Taken as a whole, the evidence in this case is insufficient to establish that Respondent was Petitioner’s employer or that it, acting through Mr. Wolfe or otherwise, unlawfully discriminated against Petitioner on the basis of his race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the FCHR enter a final order finding Respondent not liable to Petitioner for the alleged discriminatory employment practice(s). DONE AND ENTERED this 17th day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of March, 2009.
Findings Of Fact Respondent holds a Class DI Security Officer Instructor License, number DI89-00375 In May or June of 1994, Respondent taught a security officer course in Naples. The course was intended to qualify students for a Class D security officer license. Three students enrolled in the course. Respondent taught the entire course on two consecutive nights. Instruction on the first night ran from 5:00 pm to 9:00 pm. Instruction on the second night ran from 5:00 pm to 10:00 pm, with the last two hours devoted to the security officer examination. Respondent administered a final examination to the students, which they all passed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of State enter a final order imposing an administrative fine of $500 against Respondent. ENTERED on January 24, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 24, 1995. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Office of the General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Richard R. Whidden, Jr. Assistant General Counsel Department of State The Capitol, MS 4 Tallahassee, FL 32399-0250 Michael V. Jones, pro se 344 Benson St. Naples, FL 33962
The Issue The issue is whether respondent should be disciplined for allegedly operating various security services without a license as charged in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On April 25, 1989, petitioner, Department of State, Division of Licensing (Division), received by mail from an anonymous source a copy of a business card reflecting the name of respondent, Robert D. Wingard, and another individual, and indicating that respondent provided the following services: "Executive & V. I. P. Protection, Undercover Investigation, Alarm Technology, Bonding & Courier Work." The card further represented that Wingard held "Lic. No. 34882-809099." The card listed Wingard's address as 4419 Melbourne Street, Punta Gorda, Florida. After receiving the card, a Division investigator, Daniel J. Cabrera, interviewed respondent in Punta Gorda on May 11, 1989. During the course of the interview, respondent acknowledged to Cabrera that he operated a private investigative service, performed the services of a private investigator, operated a security guard agency and performed the services of a security guard, all under the name of Security Enforcement Specialists. However, Wingard maintained he had all necessary licenses from the state. According to Charlotte County records, Wingard applied for and was issued an occupational license by that county on June 18, 1988. The administrative complaint has used that date as the date on which Wingard commenced providing the above services. An examination of Division records indicated that Wingard did not hold those licenses needed to operate the services described in finding of fact 2. Therefore, all services being provided by Wingard were performed without the proper licensure from the state.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the administrative complaint issued against respondent. DONE AND ENTERED this 27th day of December, 1989, in Tallahassee, Leon County, Florida. Donald R. Alexander 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 27th day of December, 1989.
The Issue The issue is whether Respondent, Armor Correctional Health Service, Inc. (“Armor”), discriminated against Petitioner, Vadim Troshkin (“Petitioner” or “Mr. Troshkin”), based upon his age, national origin, race, or sex, in violation of section 760.10, Florida Statutes (2015).1/
Findings Of Fact Armor is an employer as that term is defined in section 760.02(7). Armor provides healthcare services in correctional facilities. Armor has a contract with the Jacksonville Sheriff’s Office (“JSO”) to provide healthcare services in correctional facilities in Duval County. Petitioner is a Caucasian male over the age of 40. His country of origin is Ukraine. Sometime in February 2018, Mr. Troshkin applied for an Advanced Registered Nurse Practitioner (“ARNP”) position with Armor at the detention facility adjacent to the JSO headquarters on Bay Street in downtown Jacksonville. There is no dispute that Mr. Troshkin is a licensed ARNP in the State of Florida. At the time Mr. Troshkin applied for the job, Vicky Hailey was Armor’s regional manager overseeing the Jacksonville detention facility. Ms. Hailey’s duties included interviewing and hiring applicants to work in the facility. On March 21, 2018, Ms. Hailey conducted an in-person interview with Mr. Troshkin at a job fair in Jacksonville. Ms. Hailey was impressed by Mr. Troshkin and made him a job offer on the spot. Mr. Troshkin was given a “provisional offer” to work for a salary of $87,000 per year. The offer was conditioned on Mr. Troshkin’s passing a JSO background screening. JSO mandates this security clearance for any Armor employee working at the Jacksonville detention facility. Mr. Troshkin accepted the provisional offer. Mr. Troshkin testified that he was especially eager to obtain this position because he lived in a condominium directly across the street from the JSO headquarters and the detention facility. He believed that his proximity to the workplace would be an advantage to him and to his employer. When Ms. Hailey made the provisional offer to Mr. Troshkin on March 21, 2018, she instructed him to contact Selena McClain, an administrative assistant at the Jacksonville detention facility, to schedule a time to be fingerprinted for the background screening. Ms. McClain met Mr. Troshkin at the Jacksonville detention facility on March 22, 2018, and escorted him to the JSO headquarters for fingerprinting. Ms. McClain’s job duties included coordinating the fingerprinting of applicants and corresponding with the JSO as to the status of the background screenings. Ms. McClain had no authority to make decisions regarding Armor’s hiring process. Background screenings are usually completed within 48 hours of fingerprinting. If issues come up during the screening, the process can take as long as a month. No employee of Armor has any control over the time taken by the JSO to complete its background screening process. On March 26, 2018, Sergeant Shaun Taylor of the JSO sent an email to Ms. McClain stating as follows: Vadim Troshkin’s background results came back with criminal history that needs to be reviewed by FDLE.[3/] I submitted the paperwork and I will let you know if they request anything further. On the afternoon of April 10, 2018, Ms. McClain received another email from Sgt. Taylor. This email read as follows: FDLE just called about Vadim Troshkin and stated that they are having problems getting records from San Diego. They asked me to reach out to see if he has any documentation that shows the disposition and severity for each of his charges. Thanks. Also on April 10, 2018, Ms. McClain had a discussion with Ms. Hailey as to delays in the background checks for Mr. Troshkin and two other candidates for employment. Both of the other candidates were female. Ms. Hailey made the decision to stop the screening process as to these three candidates and to withdraw their provisional job offers. Ms. McClain had no role in the decision, aside from providing information to Ms. Hailey. Ms. Hailey directed Ms. McClain to inform Sgt. Taylor that the JSO could stop the background screening process as to these three candidates. Ms. McClain sent Sgt. Taylor an email to that effect at 3:19 p.m., on April 10, 2018, a little more than 20 minutes after Sgt. Taylor’s email to her about the problems FDLE was having in obtaining records for Mr. Troshkin. At the hearing, Ms. Hailey testified that she needed to fill the ARNP vacancy at the Jacksonville detention facility as soon as possible. She had no way of knowing how long Mr. Troshkin’s background screening would take or whether it would result in a security clearance. Ms. Hailey had other qualified candidates who had already passed their background screenings, so she made the decision to withdraw the offer to Mr. Troshkin and give the ARNP job to one of the other candidates. Because of the JSO’s requirement that Armor employees pass a background screening, Mr. Troshkin was technically not qualified for the ARNP position at the time Ms. Hailey needed to fill it. Mr. Troshkin offered no evidence that any other applicant whose background screening was taking longer than expected, and whose position Armor deemed critical to fill, was treated differently than he was. Ms. Hailey testified that her reasoning was the same as to the two female candidates whose offers were withdrawn. She stated that withdrawing offers because of problems or delays with the background screening process was not uncommon. On April 10, 2018, at 3:59 p.m., Ms. McClain sent Mr. Troshkin, via email, a letter on behalf of Armor that read as follows: Dear Vadim, We regret to inform you that you failed to pass the Jail’s security clearance. Therefore, Armor is unable to extend an offer of employment. As always we wish you well in your future employment endeavors. Ms. McClain testified that this letter was generated via a template. She chose from a menu the language that most closely applied to Mr. Troshkin’s situation. Unfortunately, the language chosen from the menu left Mr. Troshkin with the understandable impression that he had failed the background screening, when in reality the screening had never been completed. Mr. Troshkin phoned Ms. McClain, who told him that his background screening report had not been received by Armor and therefore the company had decided to move on to another job candidate. Mr. Troshkin was perplexed. He testified that he had no felony or even misdemeanor convictions on his record. His only problem with law enforcement had been an “unpleasant incident” in California, which he referred to as an “infraction.” He stated that he had been unlawfully arrested but that the incident had resulted in no criminal conviction. The case had been closed and sealed. Mr. Troshkin declined to offer any more details about the California incident. Mr. Troshkin began thinking about his dealings with Armor. Ms. Hailey and the other persons he met during the interview process had been friendly and positive. Ms. McClain, however, had been difficult. At the outset of the fingerprinting process on March 22, 2018, the JSO’s fingerprint machine was not functioning properly. Mr. Troshkin and Ms. McClain were forced to make small talk for about an hour while the machine was being repaired. Mr. Troshkin testified that things were not going badly until he mentioned that he was a supporter of President Trump. Ms. McClain, who is African American, castigated him, wondering aloud why “you people” come here and support President Trump. In the context of the conversation, Mr. Troshkin took “you people” to mean white immigrants from Eastern Europe. Looking back at how events had transpired, Mr. Troshkin convinced himself that Ms. McClain was behind his rejection by Armor. He testified that he contacted an unidentified person with the FBI who told him that his background screening results had been sent to the JSO on the day after he was fingerprinted. Therefore, Ms. McClain must have done something to prevent the results from reaching Armor, or have lied about the results not reaching the JSO. Mr. Troshkin’s vague reference to his contact in the FBI cannot be credited. Also, Ms. McClain was in fact simply acting as a conduit, passing on information that Sgt. Taylor had provided to her, though Mr. Troshkin did not know that at the time. Armor’s role in the background screening process is entirely passive. The Armor employees who testified at the hearing did not know how JSO performs the background screenings or which databases the JSO consults during the screenings. JSO notifies Armor of any delays in the process and, ultimately, whether or not the applicant passes. Armor is not notified as to the reasons why an applicant fails a background screening. Armor is not given a report by the JSO reflecting the results of a background screening. Mr. Troshkin began sending emails to Ms. Hailey and other Armor employees.4/ The first email was sent on April 16, 2018, to Ms. Hailey and Jackie Mattina, an Armor employee who had participated in Mr. Troshkin’s interview at the job fair. The email stated that he had contacted “the Florida FBI background check up,” and the person he spoke with told him that he had been “cleared” on March 23, 2018. He stated that he could not understand why Ms. McClain “keeps saying that they never received any report and I do not pass that background check up.” Later on the same date, Mr. Troshkin sent another email to Ms. Mattina, complaining about the drug dealing that went on near his apartment, “right in front of sheriff office.” He stated that the area was “infested with drug dealers” who “give handshakes to cops sitting right there. But it is me with my infraction ‘disturbance of peace’ is the real threat to the whole justice system and society.” On April 18, 2018, Mr. Troshkin sent another email to Ms. Mattina that stated as follows: Good afternoon, I am still in disbelief that Mrs. McClain ruined my career in jail. It is right in front of my building. I would cover any shift you need coverage. And I am a good guy, no drugs, exercise daily 2 hours, spend 3 hours daily studying and reviewing material. Mrs. McClain windows probably facing my condo pool. If she changes her mind I am right there at the pool. She just need to open window and waive her hand. I looked through the requirement for the position and it says not to have felonies. I have only infraction. 6 years ago. Next year it will not even show in my background check up. Still crying, Vadim Troshkin At some point in this time frame, Mr. Troshkin sent a series of messages to Ms. McClain’s private Facebook account. The messages read as follows: [S]o you decided my fate not to have this job, even if I don’t have any felonies or misdemeanors. Pure racism and discrimination. I qualify for any federal job. I am a good person and good nurse practitioner. I am just tired when some prejudiced people discriminate against hard- working immigrants like me. [D]o you realize how many times cops fabricate complete lies and destroy lives of many people. Do you realize that according to statistics 20% inmates are in jail by fabricated charges. Maybe it is time to stop being a hypocrite and playing righteous as cops can fabricate anything on anybody including you or your family, friends etc. You do not have any idea how much I needed that job and I was going to give 200% of myself into this job. No, you just threw my opportunity away. And completely unfair and even illegally. As an immigrant from ex-Soviet union I experience discrimination mostly on daily basis. And that incident happened only because red-neck cop fabricated all. She, it was she tortured me for 6 hours. I will never forget her happy eyes when she was watching being in horrible pain. She fabricated all of it. [B]ut I forgot you are so righteous, almost saint. On April 22, 2018, Mr. Troshkin came to JSO headquarters and asked to speak with Ms. McClain. He testified that the person at the desk phoned Ms. McClain and that he could hear Ms. McClain screaming over the phone. Mr. Troshkin testified that he could hear Ms. McClain calling him a “criminal” and directing the JSO personnel to either evict or arrest him. Ms. McClain credibly testified that she felt threatened when Mr. Troshkin contacted her via her private Facebook account and she reported the contact to Ms. Hailey, who in turn contacted Armor’s legal counsel. In a letter dated April 18, 2018, Armor’s attorneys conveyed the company’s request that Mr. Troshkin cease and desist his communications to Armor’s employees. Mr. Troshkin complied with the attorneys’ request. Mr. Troshkin testified that he had no complaints about Ms. Hailey or the manner in which he was interviewed and given a job offer. He testified that he never felt that Ms. Hailey harbored any discriminatory intent towards him or ever discriminated against him. Mr. Troshkin testified that the only individual at Armor who discriminated against him was Selena McClain. Ms. McClain credibly testified she had no discriminatory animus towards Mr. Troshkin. She credibly denied that her initial conversation with Mr. Troshkin included any disparaging remarks about his race or national origin. She credibly denied screaming at a JSO employee over the phone that Mr. Troshkin should be arrested. She testified that she did not know his country of origin. As found above, Ms. McClain’s only role in this matter was to pass information from Sgt. Taylor to Ms. Hailey. The decision not to proceed with hiring Mr. Troshkin was made by Ms. Hailey alone and was based on Sgt. Taylor’s information, not on any misinformation allegedly provided by Ms. McClain. In summary, Petitioner offered no credible evidence that he was discriminated against on the basis of his age, national origin, race, or sex. Petitioner offered no credible evidence that he was qualified for the position, given that a mandatory condition for hiring Petitioner was that he receive a security clearance to work in the JSO’s Jacksonville detention facility. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Armor for his termination. Petitioner offered no credible evidence that Armor’s stated reasons for not hiring Petitioner were a pretext for discrimination based on Petitioner's age, national origin, race, or sex.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Armor Correctional Health Services, Inc., did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 31st day of May, 2019.
