Findings Of Fact In 1971, Respondent became a state trooper with the Tennessee Highway Patrol. The other troopers introduced him to Mrs. Gary and advised him to use Gary's Garage for towing and wrecker service when he was working in that area, as they did, because Mrs. Gary gave the troopers gifts and allowed them to use her garage for work on their personal automobiles and provided them with free parts. Respondent became friendly with Mrs. Gary, and she began giving him clothing and food, as she did the other troopers, to show her gratitude for their calling her tow truck concern to haul away cars involved in accidents in her area. Mrs. Gary was not obligated to pay Respondent for referring cars to Gary's Garage, nor was Respondent obligated to refer cars to that garage. About the time that Respondent refused to support a political candidate endorsed by Mrs. Gary and also became involved with a new girlfriend, Mrs. Gary told Respondent to stop by her garage to pick up his Christmas present. She told him that if she were not there when he came by, his present would be in the top drawer of her desk. Respondent went to Gary's Garage to pick up his present while he was on duty. Mrs. Gary was not there, and Respondent looked in the top drawer of Mrs. Gary's desk. He found an envelope with his name on it. He took the envelope and left. He later opened the envelope and removed the three $20 bills he found in it. His hands turned green from the ink on the bills. He panicked and threw the money out the car window. Respondent received a call from the Captain telling him to return to the station. When he arrived there, the Captain asked him if he took money from Gary's Garage. When he admitted he did pick up his Christmas present, he was arrested. Based upon Mrs. Gary's allegations, Respondent was indicted on January 26, 1972, and charged with larceny and concealing stolen property in the amount of $577. Based upon the advice of his attorneys, Respondent pleaded guilty to petty larceny, a misdemeanor. On June 2, 1972, he was sentenced to a term of 11 months and 29 days, which sentence was suspended, and Respondent was placed on five years probation. With the permission of his parole officer, Respondent left Tennessee and moved to Florida. Respondent was hired by the Homestead Police Department in June or July, 1973. He attended and completed training at the police academy. On September 28, 1973, he was issued his certification as a Law Enforcement Officer by the State of Florida. Respondent worked as a Law Enforcement Officer with the Homestead Police Department for six and one-half years without receiving even a reprimand. While employed there, he completed his term of probation. In October, 1979, Respondent married a lady who was formerly married to the vice-mayor's nephew. After six weeks, she left Respondent for her exhusband. Her parents involved themselves in the marital problems and pressured the Homestead Police Department to investigate Respondent. The Chief agreed to suspend Respondent with pay while an investigation was conducted, but Respondent resigned on January 3, 1980, rather than be subjected to such politics. Charles T. Renegar has been in law enforcement for 36 years and is the Chief of Police of the Hialeah Gardens Police Department. Respondent was recommended to him by one of Respondent's former superiors at the Homestead Police Department. Respondent was employed as a Law Enforcement Officer by the Hialeah Gardens Police Department on September 22, 1980. He took the sergeant's examination on December 2, received the highest grade on the examination and was promoted to sergeant on December 17, 1980. In June, 1981, Respondent received the third highest grade on the lieutenant's examination. Respondent's certification became automatically inactivated while he was between employment by the Homestead Police Department and the Hialeah Gardens Police Department. His request for activation of his certification after he joined the Hialeah Gardens Police Department has been held in abeyance pending the outcome of this proceeding. Although Chief Renegar ran the police academy as its nighttime coordinator for 14 years, he never met a more sincere and dedicated police officer than Respondent. During the short time Respondent was working for the Hialeah Gardens Police Department, he received the Optimist Club Award as officer of the quarter. He is highly regarded in the Hialeah community. Renegar has held Respondent's sergeant's position open for him and considers Respondent in line for a lieutenant's position. Renegar flew with Respondent at his own expense to a full evidentiary hearing before the Tennessee Clemency Board. On February 19, 1982, Respondent was pardoned by the Governor of the State of Tennessee of his misdemeanor conviction of petty larceny. Respondent's guilty plea to the misdemeanor of petty larceny is the only obstacle to active recertification of Respondent's Certificate of Compliance #02-8832 by the Petitioner. The undisputed facts of the matter which resulted in Respondent's guilty plea to petty larceny involved accepting gratuities and did not involve theft, embezzlement or larceny.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT: A final order be entered dismissing the Administrative Complaint against Respondent Ronald Lee Dunn and activating his Certificate Number 02-8832 as a Law Enforcement Officer in the State of Florida. DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 19th day of November, 1982. COPIES FURNISHED: Percy W. Mallison, Jr., Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Terrence J. McWilliams, Esquire 1999 SW 27th Avenue Miami, Florida 33145 G. Patrick Gallagher, Director Criminal Justice standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO. 81-3053 RONALD LEE DUNN, Respondent. /
The Issue Whether Respondent's, Jamie Gonzalez, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent was certified by Petitioner on April 26, 1983, and devoted approximately 20 years to his career in law enforcement. He is 58 years old. He holds Law Enforcement Certificate No. 117162. On the evening of December 13, 2002, Respondent left a social function at approximately 11:00 p.m. and was operating his motor vehicle, a pick-up truck, while his ability to operate the vehicle was impaired by alcoholic beverages. Respondent acknowledged this at the onset of the final hearing. As he drove in an erratic manner on a rural Seminole County, Florida, roadway, he was observed by seven teenagers traveling together in two motor vehicles. One of these individuals contacted a law enforcement agency using a cellular telephone. The law enforcement agency directed these young people to follow Respondent and to continue reporting his route. Because of Respondent's proximity to the City of Oviedo, Florida, the Oviedo Police Department was alerted that a drunk driver was headed toward their city. Respondent was driving to the location of his business in an industrial park located in Seminole County, Florida, in close proximity to, but not within, the Oviedo city limits. When Respondent arrived at his business, he departed his motor vehicle and entered his business premises. The drivers of the two vehicles which were following Respondent placed their vehicles in position to block Respondent's exit from the industrial park which had only one exit road. After spending approximately ten minutes in his office, Respondent re-entered his vehicle and began to leave the industrial park. As Respondent drove his pick-up out the exit road, he was confronted by two vehicles blocking the exit road and seven individuals standing in close proximity of the blocking vehicles. There is no evidence that, until his exit was blocked, Respondent was aware that he was being followed. At approximately the same time as this confrontation was taking place, Officer Heather Capetillo, Oviedo Police Department, having been alerted and on watch for a drunken driver, approached the scene on the main road and observed all three vehicles. Because the industrial park was not within the City of Oviedo, she turned her vehicle around and parked within the City of Oviedo city limits several hundred feet from the road leading from the main road to the industrial park. It is not apparent that Respondent or the seven young persons were immediately aware of Officer Capetillo's presence. Although testimony regarding the ability of the various participants to observe what was happening varied, the closest street lights were approximately one mile from the industrial park. At least one vehicle had its headlights on; the remainder of the lighting was natural, moonlight. Lighting conditions were not good. Upon observing the blocking vehicles and the dismounted passengers, Respondent stopped his vehicle approximately 50 feet from them, leaving the vehicle's headlights on. Earlier in the evening Respondent had $4,400 in his possession, which he had deposited in a safe in his office. Believing himself to be the potential victim of a robbery, Respondent exited his vehicle carrying his automatic pistol and his cellular telephone. Because he did not want to confront these seven individuals, he retreated up the road toward his office in the industrial park. Observing Respondent with a handgun, the seven young people were understandably alarmed and began shouting and taking cover. Two young women, observing what they believed to be a Florida Highway Patrol vehicle, ran to Officer Capetillo's vehicle, screaming that "the man had a gun" or words to that effect. Acting immediately, Officer Capetillo activated her emergency lights and drove to the scene. When Respondent realized that a law enforcement officer had arrived on the scene, he turned and began walking toward the vehicles, which now included the police cruiser. Upon exiting her vehicle, Officer Capetillo could not initially see Respondent. He was immediately pointed out to her by one of the young people. She observed him near the road behind and to the side of his truck. She was approximately 50 feet from Respondent's vehicle in the immediate proximity of her cruiser and the two blocking vehicles. Officer Capetillo advises that "her adrenaline was flowing." She immediately announced, "Oviedo Police. Where's the gun?" Respondent answered, "Right here." She observed that Respondent had something in both hands. Respondent's right hand then moved up, and Officer Capetillo was able to observe the "barrel of a gun." Respondent was holding the weapon in his right hand at the barrel housing between his thumb and forefinger. She then said, "Put your hands up." Respondent "immediately" (Officer Capetillo's quote) put his hands up. She then said, "Drop it," and "I could hear it clunk." "There was no hesitation"; again, Officer Capetillo's quote. Respondent actually dropped the weapon into the cargo bed of the pick-up. She then said, "Drop the other thing," and she immediately heard a second "clunk." Respondent's hands were now free. Officer Capetillo then instructed Respondent to kneel down, which he did, and he was handcuffed. When Officer Capetillo observed the weapon in Respondent's right hand with the barrel directed at her, she believed herself to be in imminent danger. Fortunately, she used excellent judgment and did not use her firearm.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (2002), and that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2005. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jamie Gonzalez 1041 Sugarberry Trail Oviedo, Florida 32765 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement 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 issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Respondent is the state agency that regulates the provision of services to individuals with developmental disabilities (referred to by the Agency as its clients), pursuant to chapter 493, Florida Statutes (2015).1/ The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities include intellectual disability, cerebral palsy, autism, spina bifida, Prader-Willi syndrome, and Down syndrome. These individuals often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. They are at a heightened risk of abuse, neglect, and exploitation by those who provide services to them. Petitioner is a 42-year-old female who worked for a short period of time (from April 14, 2015, to October 2, 2015) as an independent contractor for Peak Provider, Inc., which is a service provider regulated by the Agency to provide in-home and community-based services to the Agency’s clients. Petitioner worked as a supported living coach, providing supported living services to adults with developmental disabilities in their homes. This means that she provided “assistance to adult clients who require[d] ongoing supports to live as independently as possible in their own homes, to be integrated into the community, and to participate in community life to the fullest extent possible.” § 393.063(39), Fla. Stat. (defining supported living services). These services include assisting clients with paying bills and balancing checkbooks, and taking clients out in the community, for shopping, medical appointments, or other activities. Petitioner’s supported living coach job was a “direct service provider” position of special trust, because she provided services directly to the Agency’s clients, she had access to clients’ living areas, and she had access to client funds or personal property. As a direct service provider, Petitioner was required to undergo level 2 background screening pursuant to chapter 435, Florida Statutes, upon being retained by Peak Provider on April 14, 2015. See § 393.0655, Fla. Stat. Petitioner underwent level 2 background screening, which was processed by the Department of Children and Families (DCF) on the Agency’s behalf. By letter dated September 30, 2015, DCF notified Petitioner that her background screening results revealed a criminal offense that disqualified Petitioner from continuing to work in her position of special trust. As a result of her disqualification, Petitioner’s position with Peak Provider was terminated on October 2, 2015. The DCF letter informed Petitioner that she may be able to apply for an exemption from disqualification. Petitioner was familiar with that process, since she had recently applied for and received exemptions from disqualification from two other state agencies: the Agency for Health Care Administration (AHCA), which issued an exemption on February 5, 2015; and the Department of Juvenile Justice (DJJ), which issued an exemption on May 22, 2015. Within a few days after she was terminated by Peak Provider, Petitioner submitted an application seeking an exemption from disqualification for positions of special trust within the Agency’s purview. The purpose of an exemption application is to demonstrate to a state agency that the applicant should not be disqualified from employment in positions within the regulatory purview of that agency. Applicants must set forth “clear and convincing evidence of rehabilitation” from their disqualifying offense. Factors to be addressed with regard to rehabilitation include the circumstances surrounding the disqualifying offense, the time period that has elapsed since the disqualifying offense, the nature of harm caused to the victim, and the history of the applicant since the disqualifying offense. In assessing rehabilitation, the state agency reviewing an exemption application may consider evidence that the applicant has been arrested for or convicted of other crimes since the disqualifying offense, even though the subsequent criminal incidents would not themselves be disqualifying offenses. Petitioner’s Disqualifying Offense The disqualifying offense identified in DCF’s letter notifying Petitioner of her background screening results was an August 16, 1994, probation violation in reference to a September 1991 aggravated assault offense. The evidence established that Petitioner committed the underlying offense in May 1991, when she was 17½ years old. An information was filed in September 1991, charging Petitioner with aggravated assault, a felony. In October 1991, Petitioner pled guilty to the charge. Petitioner was adjudicated guilty, sentenced to five years of probation, and ordered to pay restitution to the victim. At hearing, the Agency’s representative testified that the Agency did not consider the aggravated assault offense itself to be a disqualifying offense, because Petitioner was a minor when she committed the offense. However, the Agency determined that Petitioner’s conviction in 1994 for violating probation was a disqualifying offense, because her probation was revoked and, in accordance with section 948.06, Florida Statutes, the original charge was reopened and sentence was imposed for the aggravated assault felony conviction. The Agency’s position that the aggravated assault felony conviction was not considered a disqualifying offense does not appear to be supported by the background screening laws in chapter 435, Florida Statutes. The aggravated assault offense was a felony to which Petitioner pled guilty. It is a disqualifying offense under level 2 background screening standards even though Petitioner was a minor when she committed the offense. The Agency did not explain or offer any support for the notion that a disqualifying offense does not count as a disqualifying offense if it is committed by a minor; the background screening laws provide otherwise. Petitioner gave her explanation of the circumstances surrounding the aggravated assault offense, both in the “arrest narrative report” she submitted with her exemption application and at hearing. Petitioner wrote in her arrest narrative report that she and a girl she went to school with were arguing over a boy when the girl’s mother “jumped in my face with a knife.” Petitioner wrote that she was fearful, and was only trying to defend herself. She wrote that she and the mother struggled over the knife, “and in the process [the mother] got cut on the leg.” Petitioner’s described an incident in which she was more the victim than the girl’s mother: it was the mother who brandished the knife, and Petitioner was only acting in self-defense by struggling with the mother over the knife. Petitioner did not accept responsibility for cutting the victim with a knife. Instead, Petitioner used a more neutral, passive description, acknowledging only that in the process of struggling for the knife, the mother “got cut on the leg” as if it just happened. Nonetheless, Petitioner did not plead self-defense, when charged with aggravated assault; she pled guilty. Petitioner’s description is inconsistent with the police report. The police report described Petitioner as the aggressor who “came after [the other girl] with a knife” and that the girl’s mother--the victim--attempted to stop Petitioner, but was knocked to the ground. The police report then stated that while the victim was on the ground, Petitioner cut the victim not once, but twice, on the inside thigh of the left leg and on the right calf; Petitioner then fled the area and the victim went to a hospital emergency room where she was treated for the knife wounds. Petitioner did not attempt to explain the discrepancies between her description of this incident and the description in the police report.2/ According to the court records, after Petitioner pled guilty to aggravated assault, she did not accept the consequences of her offense by steadfastly carrying out the terms of punishment imposed by the court. Instead, as a young adult, Petitioner was found guilty of violating the terms of the probation imposed for the aggravated assault felony conviction not just in September 1994, but multiple times in 1992, 1993, and 1994. For example, in 1993, Petitioner was found to have violated the probation condition requiring her to not violate any laws. She violated that condition by committing retail theft, for which she was adjudged guilty and convicted in March 1992. Petitioner pled guilty to violating probation, her probation was revoked, she was placed on community control for one year, and ordered to perform 50 hours of public service work. Then, in September 1994, she was found to have violated the community control order by not properly conducting herself, which she admitted in a revocation of community control hearing. The community control was revoked, and she was sentenced to two months in jail, just a few months before her 21st birthday. Length of Time Since Disqualifying Offense Whether measured from the offense itself, the adjudication of guilt, or the completion of the punishments imposed (and revised), it plainly has been a long time since Petitioner’s disqualifying offense. She is now 42; she had completed all punishments for the aggravated assault offense before she turned 21. To her credit, Petitioner has not been convicted of another disqualifying offense. Although Petitioner was arrested several times for crimes that would have been disqualifying offenses if Petitioner was prosecuted and convicted, that was not the case. These incidents are not considered as additional disqualifying offenses; however, they have some bearing on the issue of Petitioner’s rehabilitation, as discussed below. Nature of Harm Caused to the Victim In describing the aggravated assault incident, Petitioner said that there was only a single minor cut to the mother’s leg. As noted above, the police report more precisely described not one cut, but two cuts, on the victim’s left inner thigh and the right calf, and that the knife wounds were treated at a hospital emergency room. Regardless of how many or how serious the cuts were, the harm inflicted by Petitioner was serious enough that she was charged with, and pled guilty to, aggravated assault, which means that she committed an assault (intentional, unlawful threat by words or act to do violence to another) with a deadly weapon. See § 784.021, Fla. Stat. (defining crime of aggravated assault, unchanged since 1975). Petitioner said that she made amends for the minor cut by reimbursing the victim for the small medical bill to treat the wound. Petitioner did so, however, pursuant to court order as part of her sentence for the offense. Indeed, had she not paid the restitution ordered, she would not be eligible to apply for any exemptions from disqualification. Petitioner’s History of Positive Accomplishments Since the disqualifying offense, Petitioner demonstrated that she has worked hard on her education. She did not finish high school on schedule, but later completed the requirements to receive her GED certificate of graduation in June 1997, when she 23 years old. More recently, Petitioner went to Gulf Coast State College, and in July 2012, she earned an associate in applied science degree in the legal assisting/paralegal field. Then, attending St. Petersburg College, she earned an associate in arts degree in May 2013. Continuing at St. Petersburg College, she received a bachelor of applied science degree in the fields of public safety administration and criminal justice in July 2014. By all accounts, Petitioner has done very well in school, making the President’s Honor List/Dean’s List on several occasions during her college studies. Petitioner testified that she is currently enrolled in online coursework offered by Liberty University, and is working on her master of arts degree in human service counseling with a minor in addiction recovery. While no documentation was provided with regard to this endeavor, Petitioner testified that she expects to graduate in May 2016. Petitioner submitted a number of reference letters with her exemption application and more letters at hearing.3/ A good number of these letters appear to be written by individuals involved in her various educational programs. Several of these letters were written to recommend Petitioner for admission to a graduate program, while others were written to recommend her for employment. Some of the letters are quite old, such as a general reference letter written ten years ago by a circuit judge who taught a criminal procedure class in which Petitioner was an “outstanding” student at Gulf Coast Community College, offering the opinion that she can be successful “in whatever activity she is pursuing.” These letters are somewhat helpful only in a very general sense to confirm what is shown by Petitioner’s educational achievements--that Petitioner has worked hard to better herself through education. However, these letters do not really address the issues for determination in this proceeding, in that the letters fail to indicate that the authors know of Petitioner’s background germane to this proceeding, including the disqualifying offense and subsequent arrests and convictions for non-disqualifying offenses; as such, they cannot offer meaningful perspective as to Petitioner’s rehabilitation. While Petitioner is to be commended for her hard work and scholastic achievements, they do not provide the clear and convincing evidence that Petitioner is rehabilitated from her disqualifying offense, or that Petitioner’s non-disqualifying criminal history does not present concerns about her rehabilitation. Petitioner also provided some information about her employment history. At the time she filed her exemption application, she was not working, having just been terminated by Peak Provider. Prior to that job, she worked as an event specialist for Advantage Sales & Marketing in Clearwater from September 2009 to September 2012. Petitioner also worked as a client service coordinator for H&R Block in Clearwater from December 2007 to April 2010. When she lived in Panama City, she worked as an assistant cook for Laguna Christian Retreat from August 2005 to November 2007. The only two reference letters that were written recently (both in October 2015), obtained by Petitioner to respond to a letter identifying omissions from her exemption application, were from a Peak Provider co-worker, who wrote to recommend Petitioner for employment, and from Petitioner’s supervisor in the job she held from 2005 to 2007. Neither letter demonstrated knowledge of Petitioner’s background at issue in this case. The letter from Petitioner’s supervisor from ten years ago offered only a general statement that Petitioner has paid her debt to society and should be given a second chance. Petitioner’s exemption request noted that she was undergoing stress because her background was keeping her from getting or keeping a stable job. However, Petitioner had only recently obtained exemptions issued by two different state agencies. By the time of the hearing, Petitioner testified that she secured a job in December 2015 working for a home health agency as a home health aide. Petitioner qualified for that job because of her exemption from disqualification issued by AHCA. Petitioner testified that her real passion is juvenile justice. She presented evidence that she started her own non- profit organization in 2009 to carry out her dream of helping troubled youth. The program she envisions, described in the non- profit materials, would “promote and establish a strong network support with the school system and juvenile court system. We will form a partnership with local school district and juvenile court system. Our primary goal is to target at risk youth and to break habits that are leading our youth in trouble in school and in the streets.” She put it this way in an October 1, 2015, letter that she wrote to submit with her exemption application: I would like to open up a youth center for at-risk youth and a drug rehabilitation center to give back to the community and make a difference in people [sic] lives. I feel my past experiences will be a great asset to youth who are headed down the wrong path. I have not only been down that road they are traveling but I can relate too [sic] many of their issues and help them overcome them. Why not choose a person to work with youth that has overcome the same obstacles they are faced with, has the insight on their challenges and has hands on experience as a juvenile delinquent? Petitioner testified that her non-profit organization has not reached the operational stage. She blamed her background as a stumbling block that has kept her from progressing beyond creating the organizational structure to operations. Although she testified that the organization is not operational because of her background, she was unable to explain why her DJJ exemption would not allow her to move forward and begin at least a portion of the program she envisions. Petitioner explained that she would not be able to fully implement her dream program because she would want to include substance abuse counseling, a program regulated by DCF, requiring a DCF exemption from disqualification. However, the exemption application at issue in this case, submitted in response to being disqualified from working for Peak Provider, seeks an exemption from the Agency, not from DCF. Apparently realizing this when questioned at hearing, Petitioner retreated from her statement that an exemption would allow her to carry out her dream. Instead, she said that an exemption from Respondent would provide her with another option, and that she had “fun” as a supported living coach providing services to adults with developmental disabilities. While need for an exemption is not a criterion, to the extent Petitioner sought to justify her request as needed to remove the stress in her life caused by being unable to carry out her dreams and being unable to support her family with a job, those justifications were proven incorrect or no longer true. Petitioner was offered the opportunity to present evidence in her exemption application of her history after the disqualifying offense of positive contributions she has made in the various communities in which she has lived. Examples might include participating in volunteer work for religious or charitable organizations, schools, shelters, libraries, community centers for the elderly or for the needy, or any of the myriad of similar opportunities for becoming involved in one’s community. Petitioner fairly summarized her showing in this regard in her PRO: “Petitioner stated that she is not involved in any community activities because her background will not allow her to be a part of much now. She stated she would love to be more involved in community activities. Petitioner reports attending church.” While Petitioner may have voiced the right sentiment in stating that she would love to be more involved, that statement is not credible. Petitioner is unreasonably using her background as an excuse for her lack of involvement in community services. Petitioner presented no evidence that she has sought to provide volunteer services in the church or in the community, but was turned down because of her background. There appears to be plenty of room within the background screening requirements for Petitioner to volunteer in a variety of programs, perhaps with limits on the number of hours she could volunteer in any one area, and perhaps with supervisory requirements. This would be one way to develop more compelling evidence that she is making good choices in her free time and making positive contributions that not only improve herself (such as with her educational achievements), but also help others in need. Petitioner generally alluded to having overcome a troubled background, but did not offer much detail to explain what problems she has or had endured, and what she has done to cope with her troubles. In response to a question in the exemption application regarding whether she receives any form of counseling, she responded vaguely that she gets counseling at her church, as needed. No specifics were offered. No documentation or testimony was presented with regard to the counseling she has obtained at her church, such as a description of the nature of the counseling services she referred to and how often she has availed herself of those services. Here, too, a better showing could be made, such as by offering testimony of a pastor or other church official who could attest to Petitioner’s rehabilitation that may be evident from her drawing on church resources for support. In response to a question in the exemption application about alcohol or drug use, Petitioner stated that she used to drink alcohol, but does not now drink alcohol, and has never “abused” drugs (notably not stating that she has not used drugs). She stated that she completed substance abuse and alcohol courses in 1992, 2004, and 2010. She only provided documentation for a substance abuse awareness course completed on January 26, 2004, but not for any others. While she claimed these courses were taken “for educational purpose” (PRO, p. 7), it appears that the courses may have been taken close in time to an arrest involving drugs or alcohol. The documented 2004 course, in particular, was completed within the 12-month probationary period for Petitioner’s nolo plea to possession of drug paraphernalia, discussed below; her probation conditions specifically required her to complete such a course during her probation. The reasonable inference is that Petitioner completed this coursework because it was required as part of her punishment for drug or alcohol-related criminal offenses. Petitioner’s Subsequent Criminal History Since the Agency did not consider Petitioner’s disqualifying offense to be the 1991 aggravated assault offense, the Agency did not consider Petitioner’s criminal record of arrests and convictions for non-disqualifying offenses between the 1991 aggravated assault offense and the September 1994 probation violation. However, this information was collected and reported as part of the background screening results, and Petitioner was asked to submit documentation, if available, with her exemption application and to explain the circumstances of each criminal arrest and conviction reported. Petitioner’s arrest narrative report provided her description of 24 criminal incidents, spanning the time period from June 20, 1990, when Petitioner was a little over 16 years old, through January 16, 2010, when Petitioner was about to turn 36 years old. Between the 1991 aggravated assault conviction and the 1994 probation violation, the arrest narrative report itemized eight arrests resulting in criminal charges. Only one of these incidents occurred when Petitioner was still a minor. The others were: battery in January 1993 and battery again in May 1993 (both battery charges dropped by prosecutor); assault and disorderly conduct in July 1993 (adjudicated guilty); assault in August 1993 (adjudicated guilty); grand theft auto in January 1994 (charge dropped); battery in March 1994 (charge dropped); stalking in July 1994 (charge dropped); and aggravated battery and disorderly intoxication in July 1994 (first charge dropped, nolo plea to disorderly intoxication, adjudication withheld).4/ Petitioner’s record reveals many non-disqualifying criminal incidents after the September 1994 probation violation; the arrest narrative report identifies 13 criminal incidents after September 1994. In eight of these instances, Petitioner pled guilty or nolo contendere to a variety of misdemeanor charges, including fleeing and attempting to elude police (1997); passing worthless checks (1999, 2000, and 2007); retail theft (2000); possession of drug paraphernalia (2003); and driving under the influence of alcohol (2010). During this same time span, Petitioner was also arrested and charged on several other occasions, but the charges were dropped for a variety of reasons. These include a 1996 arrest and felony charge of aggravated battery with a deadly weapon; a 1998 arrest in Georgia on five counts of forgery; a 1999 arrest for domestic aggravated battery; a 2001 criminal reckless driving charge in Miami-Dade County; a 2002 arrest for felony child abuse; and a December 2002 arrest for possession of cocaine in addition to possession of drug paraphernalia--the cocaine charge was dropped in 2003 when Petitioner pled no contest to the drug paraphernalia charge. Petitioner offered little by way of detail regarding these incidents. She claimed no recollection of any incident that was not documented through official records. When Petitioner did provide some detail, in most instances Petitioner blamed someone or something besides herself; Petitioner was an innocent and falsely accused bystander. For example, with regard to the March 1996 charge of aggravated battery with a deadly weapon, Petitioner acknowledged that the charge stemmed from a fight that broke out at a club she had attended, and the victim accused Petitioner of hitting her with a bottle. However, according to Petitioner, she was not trying to hurt the victim, but was instead trying to help the victim who was “under the influence of drugs and alcohol.” Petitioner claimed that the charge was dropped because it was determined that the victim was not being truthful; instead, the court records reflect that a Nolle Prosequi was filed because the state was “unable to locate the victim after the defendant was arraigned.” With regard to the November 1998 forgery charges in Georgia, after stating that she was “not sure of all the specifics verbatim,” Petitioner excused this incident as follows: “I was falsely accused for something I didn’t do.” Petitioner submitted records from Georgia, including the arrest report, which stated that Petitioner was arrested at K-Mart when she tried to use a forged check in the amount of $631.25 to pay for merchandise. The arresting officer stated that Petitioner gave several different names during the investigation, and that when she was arrested, she had four other forged checks in her possession. Petitioner did not attempt to reconcile her statement that she was falsely accused for something she did not do with the officer’s contrary description in the police report. At hearing, Petitioner noted that these forgery charges should not have been revealed as part of her criminal history, because her request to have them expunged was granted. However, the documents are in evidence, and some or all of them were provided by Petitioner. If the charges were being considered as disqualifying offenses, the fact that they were expunged might make a difference, but they are not considered here as disqualifying offenses. Instead, as Petitioner was informed at the hearing, statements in the records in evidence related to those charges can be considered, such as the statement that Petitioner gave different names to the investigating officer. Moreover, to the extent Petitioner herself offered a description of the incident that was inconsistent with the arrest report, the unexplained inconsistencies have a bearing on Petitioner’s credibility. Despite being informed at hearing as to how this evidence might be considered, Petitioner still offered no explanation for the inconsistencies. With regard to the periodic worthless check offenses, Petitioner explained her first worthless check offense for which she was adjudged guilty in April 1999 this way: “I didn’t know how to balance my checkbook properly back then.” Her second worthless check offense in 2000 was explained as follows: “I think I wrote a check to pay my furniture bill and my paycheck didn’t post in time to cover the total amount.” Petitioner offered no explanation for the May 2007 worthless check charge, stating that “to be honest I do not remember this charge.” Petitioner blamed several of the more serious charges on a boyfriend whom she accused of “constantly abusing me physically, emotionally and verbally.” She said that the domestic aggravated battery charge in December 1999 occurred because she “finally got the courage to fight him back,” and noted that the charges against her were dropped after investigation. By the same token, she filed a complaint against the boyfriend, which was investigated by the state attorney’s office, and she was notified in April 2000 that prosecution was not warranted against the boyfriend. Three years later, Petitioner blamed “the same abusive boyfriend” when she was arrested and charged with possession of cocaine and possession of drug paraphernalia. Petitioner claimed that the boyfriend was “hiding drugs in my home which I knew nothing about,” but she pled no contest to possession of drug paraphernalia, rather than risk losing at trial. A different picture was painted by a DCF investigation report on allegations that Petitioner and her paramour were making and selling drugs out of the home, that the house was known as a “drug house” in the community, and that Petitioner and her paramour were arrested on the drug charges while a child was present. The DCF report verified the threatened harm to a child by exposure to substances, and also verified child neglect. While no findings are made herein with regard to the truth of the facts stated in the DCF report, Petitioner was aware that this and eight other DCF investigation reports were put in evidence by Respondent, and Petitioner chose not to address them at all. Petitioner’s most recent criminal charge and conviction was just over five years ago, for driving under the influence of alcohol in Alabama. Petitioner disclaimed any responsibility for the incident, seeming to blame a state trooper for improperly accusing her of being “on something,” then taking her to jail when she refused to take a breathalyzer test “because I know my rights.” Petitioner asserted that a field test was administered, which she “passed with no problem.” No evidence was offered to support that assertion. The arrest report did not mention a field test, nor did Petitioner offer the testimony of any witness, such as her sister who was a passenger in the car. Petitioner offered several sweeping statements, both in her exemption request and at hearing, to the effect that she accepted responsibility for all of her wrongs, and that she was very remorseful for everything she did wrong. However, in explaining each individual incident, she did not accept responsibility, did not concede that she did wrong, and expressed little or no remorse. The strongest expression of any remorse was in Petitioner’s statement that ten years after the aggravated assault disqualifying offense, she saw the victim at church and apologized, and said that the victim forgave her. Yet even with that, Petitioner’s narrative description in 2015 of the incident made it sound like Petitioner was acting in self-defense and should be considered the real victim. At the hearing, Petitioner exhibited frustration and borderline anger at being questioned about her past and having to explain herself. Petitioner made it clear that she is weary of being asked to explain the long list of criminal arrests, charges, and convictions in her background. As she stated in her exemption request and repeated at hearing, “I think I have paid my debt to society . . . my past has haunted me long enough.” However, while Petitioner may have paid her debt to society in terms of completing all of the punishments imposed under the criminal justice system, that does not equate to entitlement to an exemption from the Agency to serve its vulnerable clients. It was Petitioner’s choice to apply for an exemption from the Agency. By doing so, she took on the burden of proving her rehabilitation, upon consideration of her history since the disqualifying offense. Petitioner believes that she should be given a second chance, and that giving her an exemption would give her the opportunity she believes she deserves to prove herself. Two other agencies have given Petitioner such a chance. Although her submissions to these agencies were not offered in evidence, she succeeded in convincing both agencies to issue exemptions from disqualification for programs they regulate. Petitioner has embarked on proving herself worthy of that chance in her current job, for which she qualified by virtue of AHCA’s exemption. The Agency took those other exemptions into account in reviewing Petitioner’s application, but also considered the differences in the types of services that could be provided, and the clients who would be served, in positions of special trust within the Agency’s purview. The Agency believes that greater caution is required because of the Agency’s vulnerable clientele and also because of the nature of the services Petitioner would be able to provide to these vulnerable people. The Agency’s view is reasonable in this case. For example, Petitioner’s history skirting around violent incidents is of heightened concern for this vulnerable population. Petitioner’s history with crimes involving theft, forgery, and issuing worthless checks is of heightened concern because of duties that include helping adults with developmental disabilities gain independence by helping them shop, pay bills, balance checkbooks, and manage budgets. The Agency also considered Petitioner’s history of traffic infractions and driver’s license issues since the disqualifying offense, including the following: failure to obey a traffic sign in August 1997; driving with a suspended license in September 1997; speeding in February 2000; failure to yield to a pedestrian in May 2001; driving a vehicle in unsafe condition in December 2001; failure to obey a traffic control device in July 2008; the 2010 DUI conviction previously mentioned in Alabama; driving while license suspended or revoked in October 2010; suspension of Petitioner’s driver’s license in July 2011 for PIP cancellation; operating a motor vehicle without a driver’s license in October 2011; and suspension of her driver’s license again in March 2015 for PIP cancellation. In addition, Petitioner’s driver’s license records show that she completed two driver’s school courses, one identified as substance abuse treatment in September 2010, and the other identified as DUI school, completed in March 2011. Petitioner offered no explanation of these records in evidence. All things considered, Petitioner failed to demonstrate rehabilitation by clear and convincing evidence. Instead, her history subsequent to the disqualifying offense reflects a pattern of criminal incidents over a long period of time, providing reasonable concern that Petitioner would pose a risk of danger as a direct service provider to the Agency’s clients. While it has been over five years since the last criminal conviction, Petitioner’s traffic infractions have continued, causing some concern that Petitioner has not completely rid herself of bad choices that present risks to others, at least in positions where Petitioner’s duties include transporting clients to medical appointments and on community outings. And significantly, in 2015 (in the exemption application) and 2016 (at hearing), Petitioner has not demonstrated that she takes responsibility for her past actions, that she recognizes the seriousness of her long history of criminal incidents that cannot simply be erased or go without explanation, or that she is truly remorseful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Jenella Brown’s, request for an exemption from disqualification. DONE AND ENTERED this 11th day of May, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 11th day of May, 2016.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact On May 23, 2005, Petitioner was hired by Respondent as a ready-mix concrete truck driver at Respondent’s Gainesville plant. Petitioner was a good employee. He had a clean driving record, and he did not have any disciplinary problems while working for Respondent. On or about July 27, 2007, Petitioner had a “mild” heart attack and was placed on medical leave by Respondent. In September 2007, Petitioner was released by his personal physician to return to work. Thereafter, Petitioner returned to work for a couple of days and began the process of being recertified for his driving duties. He reviewed safety materials and videos and did “ride- alongs” with other drivers. Before Petitioner could return to his driving duties, he was required by federal Department of Transportation (DOT) regulations to pass a physical and be certified as “physically qualified.” Recertification is required every 24 months and after an injury that impairs the driver’s ability to perform his/her normal duties, such as the heart attack suffered by Petitioner. Petitioner understood that he could not return to his job as a ready-mix concrete truck driver until he passed a physical and received his DOT certification. On September 12, 2007, Respondent sent Petitioner to a DOT-approved physician in Ocala for his physical. Petitioner did not pass the physical. The DOT-approved physician expressed concerns about Petitioner’s cardiac surgery, possible sleep apnea (based upon a questionnaire filled out by Petitioner), and blood pressure issues. There is no credible evidence that Respondent influenced the DOT-approved physician’s decision in any way. Petitioner’s suspicion that Respondent had something to do with the decision is unfounded. Petitioner’s personal physician disagreed with the concerns expressed by the DOT-approved physician, and after Petitioner underwent a series of tests, it was determined that he did not have sleep apnea. On November 9, 2007, Respondent laid Petitioner off based upon his “failure to meet job qualifications.” Petitioner was 48 years old at the time of the lay- off. There is no credible evidence that Petitioner’s age or medical condition played any role in Respondent’s decision to lay Petitioner off. Rather, the decision was based solely upon Petitioner’s failure to have the DOT certification that was required for him to drive a ready-mix concrete truck. Respondent gave Petitioner ample time to obtain his DOT certification before it laid him off. Approximately two months passed between the time that Petitioner was cleared to return to work by his personal physician and the time that he was laid off for not having his DOT certification. Petitioner did not obtain his DOT certification until some point in January 2008. Petitioner was treated no differently by Respondent than other drivers -- both older and younger than Petitioner -- who lost their DOT certification. Like Petitioner, those drivers were fired because they did not meet the applicable job qualifications. Petitioner testified that he was told that he would be rehired when he got his DOT certification. This testimony is corroborated by the comment on the Employee Separation Notice for Petitioner, which stated “Jesse has been unable to get his DOT card/when he does he will be rehired.” By the time Petitioner obtained his DOT certification in January 2008, Respondent’s business had declined due to the slow-down in the economy and the building industry, and it did not have any work for Petitioner. Respondent laid off three drivers at its Gainesville plant in December 2007, and it laid off an additional five drivers at the plant in February 2008 because of the decline in its business. Six of the eight drivers who were laid-off were younger than Petitioner. After these lay-offs, there were still three drivers employed at Respondent’s Gainesville plant who had less seniority than Petitioner, but in order to rehire Petitioner, Respondent would have had to fire one of those drivers. There were also a number of drivers still employed at Respondent’s Gainesville plant who were older and had more seniority than Petitioner. Respondent’s decision not to fire one of the other drivers in order to re-hire Petitioner was reasonable under the circumstances. And, more importantly, there is no credible evidence that this decision was motivated in any way by Petitioner’s age or a perceived disability based upon his heart attack. Respondent has not hired any drivers at its Gainesville plant since the lay-offs described above. Petitioner has not worked since he was laid off by Respondent. He testified that he has tried to find another truck-driving job, but that like Respondent, most companies are not hiring drivers because of the slow-down in the economy and the building industry. Petitioner would likely still be employed by Respondent if he had obtained his DOT certification before Respondent started laying off drivers because Petitioner was a good employee with more seniority than all but one of the drivers who were laid off in December 2007 and February 2008. Petitioner believes that Respondent could have put him to work in the warehouse or on the yard until he obtained his DOT certification and could return to driving duties. However, the record does not reflect whether any positions were available in the warehouse or on the yard or whether Petitioner was qualified for those positions. Petitioner testified that he was told by other employees that they overheard Respondent’s managers stating that they did not intend to return Petitioner to his driving duties because his heart attack made him a “high risk driver.” No evidence was presented to corroborate this hearsay-based testimony. Petitioner also testified that a supervisor made a critical comment to him regarding his use of a cane immediately after he returned to work. The supervisor denied making the comment, and even if the comment was made, there is no credible evidence that it was anything more than an isolated comment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of May, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 28th day of May, 2009.
Findings Of Fact At all times relevant to this matter, Ricky L. Sapp held Florida Teaching Certificate number 528297, in elementary education and was employed as a math teacher at Belleview Middle School, Escambia County, Florida. During the 1985-1986 school term, Shawn Dickinson, a 13-14 year old male, was a student in the Respondent's math class. During the fall of 1985, Sapp began to employ the student to perform tasks including yard work, car washing and other small jobs. Dickinson went to Sapp's home both to perform odd jobs and on a social basis. The student gave gifts to Sapp and other teachers at Christmas 1985. Sapp and two other teachers gave the student a pair of jeans. During the 1985- 86 school term, Sapp assisted the student with a science project. On at least one occasion, they attended a movie together. On other occasions Sapp took the student along with a group of other students on a deep-sea fishing trip. During the summer of 1986, Dickinson began to reduce his social contact with Sapp. While Dickinson's mother had expressed to her son her desire that he associate more often with people his own age, she did not forbid him from visiting Sapp. She did not express her concern to Sapp. On one occasion Sapp spoke with Dickinson's mother and asked her to permit the student to have dinner at Sapp's home. She agreed to allow the student to attend with a friend of his and instructed the boys to remain together; however, the student's friend left Sapp's home. Dickinson and Sapp may have engaged in an argument. Following that incident, Dickinson's mother refused to permit him to further associate with Sapp. In the fall of 1986, the mother spoke with the school principal about Sapp and her son. She also talked with the vice- principal and guidance counselor, apparently related to the same concerns expressed to the principal. She did not communicate with Sapp. The student testified that during this time Sapp sent messages to him through other students but there was no information as to the nature of the messages. During the fall, both the student and his mother, according to testimony, received telephone calls from Sapp during which he relayed his feelings regarding the situation. Sapp denied making the phone calls. The mother also received calls from someone who would hang up when she answered. She believed the calls were from Sapp. During this time period Dickinson's family had their telephone number changed. At about the same time, the mother's car tires were slashed. In early October 1986, Sapp's home was burglarized and various items were stolen. Sapp had reason to believe that Dickinson was involved in the incident. He contacted the boy's parents and accused the student of the theft of approximately $1,300.00 of personal items. The boy's mother did not believe her son had committed the act. Sapp also contacted the police who investigated the incident. At about the same time, the police conducted an investigation into the slashed tire incident and the phone "hang-ups", during which Dickinson was apparently questioned. Dickinson was not charged in the matter. At the administrative hearing Dickinson denied stealing any of Sapp's belongings, but stated that he possibly "stole my stuff back from him." In early November 1986, Sapp was arrested and charged with lewd and lascivious acts on a child, Shawn Dickinson. Sapp attempted to have the student and his family withdraw their accusations and apparently offered to reimburse the student's family for the cost of having their phone number changed and for replacement of the car tires, but was unsuccessful. The Respondent was subsequently tried on the charge and found not guilty. (R-1) COUNT I Count I of the administrative complaint alleges several instances of sexual contact between Sapp and Dickinson. Sapp denied the allegations. The evidence did not clearly and convincingly establish that such sexual contact took place. The testimony of the student related to the allegation of sexual content was limited to the student's assertion solely that such contact, one instance wherein Sapp performed oral sex on Dickinson, and 20- 25 instances wherein Dickinson performed anal intercourse on Sapp, occurred. Dickinson stated that he told no one other than the police about the contact. The claimed contact supposedly occurred over a period of approximately six months. Dickinson stated that he continued to participate in the activity because of alleged threats made by Sapp. The threats included having Dickinson's class schedule changed, killing his dog, having one of Dickinson's "best friends" attack him, and putting a bomb in his mother's car and killing her. Dickinson admitted that he had never revealed the threat to kill the dog prior to the administrative hearing, although he has testified several times previously about the threats. At one point on direct examination the student testified that he first revealed the sexual contact to the police when Sapp "got arrested and I had to go talk to the police." (Tr.19) Yet Sapp was arrested for the alleged sexual contact with the student. Dickinson stated that he terminated the alleged contact with Sapp because his parents were suspicious of the amount of money Dickinson was receiving. However, there was no evidence that funds changed hands other than as a result of the odd-jobs Dickinson performed for Sapp. The administrative complaint alleges that the student received approximately one hundred dollars over the 1985-1986 period, an amount which appears reasonable in relation to the work apparently performed. Because the student's explanation of events and reasons for permitting the alleged contact to continue are vague and confusing, his testimony is not credible. The allegation of sexual contact between Dickinson and Sapp is rejected as not being supported by clear and convincing evidence. COUNT II Count II alleges several instances wherein Sapp has been convicted or had adjudication withheld in criminal offenses and has failed to disclose such facts on his application for teacher certification. One allegation concerns a charge of telephone harassment against Sapp. The arrest supposedly was related to numerous phone calls to the home of Dickinson. While there was testimony by Dickinson and his mother which indicated that they had received phone calls which could be termed harassing, and that such calls were or were believed to be from the Respondent, there was no evidence that he was ever arrested for such activities. The evidence introduced at hearing indicates that the arrest which occurred in November 1986 was related to the alleged sexual contact. The Petitioner did not meet the burden of proof on this allegation. Further, the administrative complaint alleges that Sapp was charged with one count of passing worthless checks in October, 1977 and three counts of passing worthless in June, 1987. No evidence was presented on these allegations. In October 1979, Sapp was involved in a lounge fight and was subsequently charged with simple battery. Sapp pled guilty. Adjudication was withheld, and a fine and six months probation were imposed. (P-9) In December 1979, Sapp was involved in a parking lot altercation and was subsequently charged with criminal mischief. Sapp pled not guilty. Adjudication was withheld and six months probation was ordered. (P-8) In December 1976,2/ Sapp was charged with leaving the scene of an accident, a criminal traffic offense. Sapp pled not guilty, but was found by a judge to be guilty. A $52.00 fine was imposed. (P-7) On Sapp's applications for teacher certification filed in September 1982, October 1982, October 1984, June 1985 and December 1985, he replied in the negative to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" (P-2, P-3, P-4, P-5, P-6) On the applications Sapp acknowledged by signature that his responses on the application were true, correct, and on three applications, complete. 3/ On his applications, Sapp indicated that he had not been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation even though adjudication has been withheld in the simple battery and criminal mischief cases in 1979. The Petitioner testified at hearing that he did not understand the relevant portion of the teaching certificate application. He testified that he did not intend to deceive the Petitioner, that he did not understand the meaning of the term "adjudication withheld," that he did not list any arrests because, prior to the lewd and lascivious charge of November 1986, he had never been handcuffed or otherwise restrained which to him signified arrest, and that he had not intended to conceal the information. However, he did indicate that on several occasions he had heard a judge say "adjudication withheld" and that he made no attempt to learn the meaning of the term. Sapp's assertion that he did not intend to mislead the Petitioner is rejected in light of his attestation that the information he provided was complete, correct and true. Sapp failed to disclose the material facts of prior legal entanglements on his applications for the teacher certificates, in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B-1.006 (5)(h), Florida Administrative Code. Accordingly, insofar as the preceding findings of fact state, the Petitioner has met the burden of proof as to the related allegations of Count II. COUNT III The administrative complaint charges that Sapp has violated Section 231.28(1)(e), Florida Statutes, in that he has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. The evidence establishes that in 1976, Sapp was convicted of a criminal traffic offense, failure to remain at the scene of accident, and was fined fifty-two dollars. Section 231.28(1)(e) , Florida Statutes, provides for appropriate disciplinary action where the certificate holder has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. Section 316.655, Florida Statutes, establishes that failure to remain at the scene of an accident involving damage to property, a violation of Section 316.061, Florida Statutes, is included among those violations identified as criminal offenses. Other violations classified as criminal offenses include failure to remain at the scene of an accident involving death or personal injury, providing false information in circumstances where the uniform traffic control law requires that information be provided, failure to obey the orders of police and fire department officials, reckless driving, driving under the influence, fleeing or attempting to elude a police officer, obstruction of traffic for purposes of non-permitted solicitation, and failure or refusal to submit a vehicle to weight and load testing upon request. The potential penalty for violation of Section 316.061, Florida Statutes, is a fine of not more than $500.00 or imprisonment for not more than sixty days or both. An examination of the range of potential penalties for criminal traffic violations indicates that the penalty for violation of Section 316.061, Florida Statutes, is less severe than the penalties provided for other violations. Accordingly, it is found that the violation of Section 316.061, Florida Statutes, is a minor traffic violation. The allegation of Count III is rejected. COUNT IV The administrative complaint charges that Sapp, based on the prior allegations, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, pursuant to Section 231.28(1)(f), Florida Statutes. Although the Petitioner presented testimony related to the allegations and the resulting effectiveness of Sapp, such testimony was based on all of the allegations being established by the requisite burden of proof. In that such allegations were not established, this Count is rejected. COUNT V The administrative complaint alleges that, pursuant to Section 231.28(2), Florida Statutes, Sapp has pled guilty or been found guilty of an offense contained within Section 231.28(1) , Florida Statutes, which is prima facie proof of grounds for revocation of the certificate. Section 231.28(1)(d), Florida Statutes, includes misdemeanors, felonies, and certain other criminal charges. The evidence established that in October 1979, Sapp pled guilty to simple battery, a first degree misdemeanor. Section 784.03(2), Florida Statutes (1975). Accordingly, the burden of proof has been met and Count V is sustained. COUNT VI COUNT VII COUNT VIII COUNT IX COUNT X COUNT XI The above six Counts were related to allegations of sexual contact between Sapp and Dickinson and are rejected as not established by the requisite burden of proof. COUNT XII The administrative complaint alleges that the Respondent has failed to maintain honesty in all professional dealings pursuant to Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(5)(a), Florida Administrative Code. As to the allegations supported by the burden of proof, Sapp failed to disclose material facts on applications filed for purposes of obtaining or retaining teacher certification even though he attested to the truthfulness of the information. The failure to provide the information is found to be a failure to maintain honesty in his professional dealings, accordingly, Count XII is sustained. COUNT XIII The administrative complaint alleges that in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B- 1.006(5)(g), Florida Administrative Code, Sapp submitted fraudulent information on a document in connection with his professional activities. Sapp testified that he did not understand the question on the application for teacher certification related to prior criminal offenses, and did not intend to mislead or deceive the Petitioner. However, more than once he admitted to having heard a judge state that adjudication was withheld in connection with the various separate offenses, and that he did not know the meaning of the term. Yet he attested that the information submitted on two applications was true and correct and on three later applications that the information was true, correct and complete. The attestation of truth, correctness and completeness implies that the attestor understands the questions and that his responses are based on such understanding. To provide false information or to make material omissions of fact on such an application constitutes the submission of fraudulent information. Accordingly, the Petitioner has met the burden and Count XIII is sustained.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order imposing a fine of $1,000.00. DONE and ENTERED this 6th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 October, 1988.
The Issue The issue is whether Petitioner’s application for a real estate sales associate license should be granted.
Findings Of Fact Petitioner is 36 years old. He has a bachelor’s degree and a master’s degree in environmental science. He also has a Juris Doctorate degree. Petitioner was licensed to practice law in Illinois in May 2002. His license was suspended in August 2006 by the Illinois Supreme Court as a result of the October 2005 criminal offenses discussed below. See Findings 12-14. The suspension of Petitioner’s license to practice law is for a period of 18 months and “until further order of the Court.” Thus, the suspension runs through at least February 2008. Petitioner is currently working part-time at a Barnes & Nobles bookstore in Tampa. Before that, he worked as an executive recruiter for several months. Before coming to Florida, Petitioner worked as an inspection and enforcement officer for the United States Environmental Protection Agency (EPA) in Illinois, and as an attorney and manager for title insurance companies in Illinois and Colorado. Petitioner has been offered a sales associate job by the Keller Williams real estate firm in the Tampa area. The offer is contingent upon the approval of Petitioner’s license application. Petitioner has a long history of alcohol and substance abuse, which he freely acknowledged in his testimony at the final hearing. He has been using illegal substances since his high-school years.2 Petitioner has four criminal offenses in his background, each of which involved alcohol. In June 1991, Petitioner was arrested in Indiana for driving under the influence (DUI). He pled guilty to the offense and spent four days in jail. Petitioner was 20 years old and in college at the time. In February 2004, Petitioner was arrested in Colorado for DUI with a blood-alcohol level of 0.17 percent, which was more than twice the legal limit. He pled guilty to the lesser offense of “driving while ability impaired” and was sentenced to probation and community service. In July 2004, Petitioner was arrested again in Colorado for DUI. He pled guilty and was sentenced to probation and community service. In October 2005, Petitioner was arrested at a concert in Boca Raton for possession of cocaine, criminal mischief (two counts), resisting arrest with violence, and battery of a law enforcement officer (three counts). The offenses were felonies. Petitioner testified that he does not recall any of the circumstances surrounding the incident because he was “extremely intoxicated” at the time. The police report of the incident, which Petitioner does not dispute,3 states that Petitioner punched a patron at the concert, punched a police officer, kicked another police officer, spit on a paramedic, damaged handcuffs and a police car, and was in possession of 0.5 grams of cocaine. The report also indicates that Petitioner was yelling, cursing, and acting belligerently throughout the incident. In January 2006, Petitioner pled no contest to the charges, and adjudication was withheld by the court. He was sentenced to 24 months of probation and 50 hours of community service; he was required to undergo an anger management class; and he was required to successfully complete a substance abuse treatment program and undergo random drug testing. Petitioner successfully completed his probation without incident and without any positive drug tests. An Order formally terminating Petitioner's probation was entered on March 15, 2007. Petitioner’s criminal offenses were not acts of youthful indiscretion or the result of momentary lapses of judgment. All of the offenses, except for the first DUI, were committed when Petitioner was in his 30’s and working in a professional capacity. Petitioner credibly testified that he has taken steps to turn his life around. He is active in a church group in the Tampa area, and he testified that he has not had a drink of alcohol or used illegal drugs since December 31, 2005. Petitioner does not currently attend Alcoholics Anonymous (AA) meetings, although he has done so in the past. He testified that he continues to live by AA’s principles and that he has a support system in place to help him remain completely abstinent from alcohol and drugs. There is no evidence that Petitioner committed any acts of fraud or dishonest dealing in connection with his work with the EPA or the title insurance companies. In October 2006, Petitioner applied for a real estate sales associate license. He was still on probation at that time. Petitioner fully disclosed his criminal history and the suspension of his license to practice law in Illinois in his license application. Petitioner’s license application was considered by the Commission at its meeting on December 13, 2006. Petitioner appeared at the Commission meeting with his attorney and responded to questions from members of the Commission. The Commission voted at the meeting to deny Petitioner’s license application. The denial was memorialized in a Notice of Intent to Deny dated January 3, 2007. The grounds for denial listed in the Notice of Intent to Deny included Petitioner’s criminal record, as revealed in the license application; the recent nature of Petitioner’s criminal offenses; the fact that Petitioner’s criminal history “shows a pattern and practice of criminal behavior over an extended period of time”; the fact that Petitioner “has not had sufficient time free of government supervision to establish rehabilitation”; and the suspension of Petitioner’s license to practice law in Illinois.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying Petitioner’s application for a real estate sales associate license. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of May, 2007.
Findings Of Fact The following facts are stipulated by the parties and are incorporated herein: The Respondent has been the clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to this complaint. In July of 1990, the Respondent's wife was issued a citation for having glass bottles on the beach, a violation of municipal ordinance No. 16.30, City of Naples. On August 21, 1990, upon failure to timely pay the fine for the violation of the above-described ordinance or to appear in court on this date, an arrest warrant for Theresa Giles was issued. On August 30, 1990, on or about 4:30 p.m., police officers arrived at the Respondent's residence to arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a telephone call to her husband at the clerk's office. The Respondent went to one of his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers at the Respondent's home and informed them that the bench warrant for Ms. Giles was recalled. Ms. Giles was not taken into custody as a result of Ms. Stoll's action. These facts are derived from the evidence presented, weighed and credited: Respondent, James Giles was the Collier County finance director, performing the pre-audit function for the county, when he was appointed county clerk to finish a two year term in 1986. He was then elected to a four year term ending in January 1993, and was not reelected. His prior employment experience was as a private certified public accountant, an employee of St. Johns County, and an auditor for the State of Florida. On August 30, 1990, when Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and her elderly mother when the deputies came to serve the warrant and arrest her. The ticket, or "Notice to Appear" issued to Ms. Giles for her infraction plainly provides notice that if the fine is not paid or the person fails to appear in court at the appointed time, an arrest warrant shall be issued. (Advocate Exhibit No. 2) James Giles immediately called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation, she went to find the supervisor, Lorraine Stoll. As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up on the computer, Mr. Giles appeared in person. This was a very unusual situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate supervisor. He asked if there was anything that could be done and Ms. Stoll responded that the warrant could be recalled. Before she could explain any further, he handed her a paper with his home phone and asked her to make the call. Ms. Giles answered the phone and put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles was not arrested. Ms. Stoll then told Mr. Giles that the fine and court costs had to be paid. He said the whole thing was ridiculous, that he could not believe a warrant could be issued for such a minor offense. By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2). James Giles admits being upset at the time that the phone call was made, but was trying to calm down because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having bottles on the beach. He denies that he pressured Ms. Stoll, but claims he was trying to be rational and get sound advice. He wanted her to make the call because he felt it would "look bad" if he did. James Giles did not raise his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a pressure situation. Ms. Stoll had never been involved in a circumstance where the warrant was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of the clerk's office for eleven and a half years, as deputy clerk. No ordinary citizen could have received the advantage that the clerk and his wife received. Judge Ellis, a Collier County judge, has a written policy providing that a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis, requires that his office or the State's Attorney be called, and does not have a written policy. Ms. Stoll does not have the authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss told her to, and their main concern was that the warrant needed to be recalled so Ms. Giles would not go to jail. On the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her, nor did she have the opportunity to tell him the proper procedure before making the telephone call. James Giles' explanation that he was simply seeking advice of his staff and then acting on it without wrongful intent is disingenuous. Whatever his actual knowledge of proper procedures for recalling a warrant, he knew or should have known that what he was doing was not an opportunity available to other citizens. His experience in the clerk's office and in prior public service should have clued him that no one else could simply get a deputy clerk to intercept an arrest with a telephone call.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order finding that James Giles violated Section 112.313(6), F.S., and recommending a civil penalty of $250.00. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4942EC The following constitute specific rulings on the findings of fact proposed by the parties: Advocate's Proposed Findings 1. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraph 9. Adopted in substance in paragraph 12. 8.-10. Adopted in substance in paragraph 10. 11. Adopted in substance in paragraph 13. Respondent's Proposed Findings 1. A.-E. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraphs 8 and 12. Rejected as the sequence suggested is contrary to the weight of evidence. Rejected as misleading. The evidence shows the process was incorrect and both staff knew it was incorrect. The clerk was informed about the correct procedure after the phone call. The procedure is set out in paragraph 13. The evidence is not clear that the fine and costs could not have been paid the same day. By the time Mr. Giles finished complaining, it was after 5:00. Rejected as contrary to the greater weight of evidence, considering the totality of Ms. Stoll's testimony as well as Ms. Heck's. Rejected as contrary to the greater weight of evidence. Rejected as immaterial. 3. Rejected as contrary to the greater weight of evidence. More specifically, this proposed finding suggests that the culpability was Ms. Stoll's rather than Respondent's. That suggestion is supported only by Ms. Stoll's timid admissions that she should not have made the phone call without having received the payment from her boss. Ms. Stoll's acceptance of blame does not relieve the Respondent of his responsibility. COPIES FURNISHED: Craig B. Willis Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399-1050 Raymond Bass, Jr., Esquire Bass & Chernoff 849 7th Avenue, South - Suite 200 Naples, Florida 33940-6715 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact William B. Barker, Jr., is certified as a law enforcement officer in the State of Florida employed by the Walton County Sheriff's Department and stationed at DeFuniak Springs, Florida. On or about 20 June 1981, Diana Marie Preston was driving her automobile west on Interstate Highway 10, in Walton County, Florida, on her way to her grandparents' home in Gulf Breeze, Florida. She had just completed the Law School Admissions Test in Tallahassee that morning and was on her way back home. Due to heavy rain in the area, she was driving carefully and was not exceeding the speed limit. At approximately 3 to 4 p.m., she was hailed by a police officer in a county police car. When she pulled over to the roadside at his request, the officer advised her she had been speeding and requested to see her driver's license. Since her license was in her purse which was in the trunk of her car, she had to get out of her car and open the trunk, at which time the officer noticed a pair of high-heeled shoes she had in there and asked her to take them out, indicating he had been looking at a pair like that for his wife. When Ms. Preston got her license out, the officer requested that she accompany him to his car, get in on the passenger side and close the passenger door. She complied, though she did not close the door completely. During this period, she noticed that though the officer was in uniform, he was not wearing either a name tag or a badge with a number on it. She does not recall whether he was wearing a pistol, but states there was a rifle in the vehicle on which he placed his hand several times while talking to her. The officer took Ms. Preston's driver's license and reached across her to the glove compartment for his ticket book, but at no time did he use his radio to call in either her driver's license number or her car tag number. Before writing out the ticket, the officer indicated he would not issue a ticket to her if she would put on her high heels (she had been driving barefoot) and let him try to guess her shoe size. He stated that for every size he was off in his guess, he would kiss her foot a certain number of times. Ms. Preston repeatedly refused, but because the officer was insistent and she felt she was in a difficult position due to the fact that she was alone on a lightly travelled (at the time) section of highway, she ultimately acquiesced. Though the officer had ample opportunity to see the shoe size when he examined the shoes, he guessed wrong on the size by several sizes. At this time, her left foot was in his lap, and he picked it up and kissed it several times. When he was finished, in the course of conversation, the officer asked her what she had been doing in Tallahassee. She told him she had been taking the LSAT, and his attitude changed immediately. He told her to go on with her trip, but cautioned her not to tell anyone what had happened, as he could get into trouble. Upon being released by the officer, Ms. Preston proceeded on to Gulf Breeze to the home of her grandparents, whom she told about the incident the following day. She did not report the incident to the police nor discuss it until several weeks later when she was contacted by two investigators who showed her a large photograph of individuals who, it was represented to her, were members of the Walton County Sheriff's Department. From this group, she identified the Respondent, Barker, and subsequently again identified him at the hearing as the officer in question, describing him as a heavyset man with a mustache and wearing tinted glasses. Respondent, upon graduation from high school, attended O. W. Junior College and then went on to the University of West Florida where he received his bachelor's degree in criminal justice. He unequivocally denies the allegations against him, stating he had never seen Ms. Preston until the day of the hearing at the hearing room. In fact, his shift was over, and he signed out just prior to 3 p.m. on 20 June 1981. In his opinion and that of his mother, the allegations against him are attributable to his stated position in a political dispute during which he sided against the incumbent sheriff for whom he was working. There is no evidence bearing on this issue other than the testimony of the Respondent and his mother.
Recommendation From the foregoing, it is concluded that the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent is guilty of the allegations contained in this Administrative Complaint. It is RECOMMENDED: That the Criminal Justice Standards and Training Commission issue a final order dismissing the Administrative Complaint. ENTERED this 24th day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated September 17, 1998, and if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for investigating and prosecuting complaints pursuant to Chapters 455 and 475, Florida Statutes (1997). The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining persons licensed under Chapter 475, Florida Statutes (1997). Section 475.02, Florida Statutes (1997). The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes (1997). Mr. Lista is, and was at all times material to this proceeding, a licensed real estate salesperson, having been issued Florida license number SL-0647732. Mr. Lista's license is currently on inactive status. Mr. Lista submitted to the Department an Application for Licensure as a Real Estate Salesperson dated January 14, 1997, and received by the Department on January 27, 1997. Question number 9 on the application requests that the applicant answer "Yes" or "No" to the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Mr. Lista answered "No" to question number 9 on the application for licensure. He signed his name below the Affidavit of Applicant, which provides as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division of Administrative Hearings or its representatives, by him/her in response to inquiries concerning his/her qualifications. Mr. Lista's signature was notarized, and he submitted the application to the Department in January 1997. The Department approved Mr. Lista's application and issued a Florida real estate salesperson license. The Department subsequently learned that, on December 10, 1985, Mr. Lista pleaded guilty to one misdemeanor charge of Disorderly Intoxication, one misdemeanor charge of Resisting an Officer Without Violence to His Person, and one misdemeanor charge of Assault. Adjudication was withheld by the court, and Mr. Lista was sentenced to probation for a period of six months. Mr. Lista was represented by an attorney in the criminal proceedings, who appeared in court and handled the matter for Mr. Lista. At the time of the final hearing, Mr. Lista recalled being arrested, going to the police station, and being released after about 30 to 45 minutes without having to post bond, and he recalled the details of the 1985 incident leading to his arrest. Mr. Lista also recalled receiving copies of the dispositions of the criminal charges against him. Mr. Lista testified that, at the time he was filling out the application for licensure, he did not recall the guilty pleas and the sentence of probation because the incident had happened 12 years previously. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Mr. Lista misrepresented his criminal history by answering question number 9 in the negative. At the very least, the evidence supports a finding that Mr. Lista acted carelessly in answering question number 9 in the negative; certainly, had he reflected for a few moments, he would have recalled the 1985 incident, as well as the guilty pleas and sentence of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Emilio Daniel Lista is guilty of violating Section 475.25(1)(m), Florida Statutes (1997); suspending his real estate salesperson license for a period of one year; and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2000.
