The Issue The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol. On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old. Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife. The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them. In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained. Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms. When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door. At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence. The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated. As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were. An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian. The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them. Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m. Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent. Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon. At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon. At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun. He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome. When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now." As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping. Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch. Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited. In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well. After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise. Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state. The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property. Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer. As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy. The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character. On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court. In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years. RECOMMENDED this 19th day of July, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance. 9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance. 21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance. Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact. II: adopted in substance except "near-perfect" record rejected as unsupported by the greater weight of the evidence. II, a-b: adopted or adopted in substance. II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance. II, d: adopted. II, e: rejected as subordinate. II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house. II, l: adopted in substance except that complaint filed against Mrs. Lanning is rejected as irrelevant. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Douglas E. Whitney Maitland Springs Office Park 377 Maitland Avenue, Suite 101 Altamonte Springs, FL 32701 Jeffrey Long Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue is whether Petitioner properly denied Respondent's application for licensure as a community association manager for failure to establish good moral character as required by section 468.433(2)(b)2., Florida Statutes, and Florida Administrative Code Rule 61-20.001(5)(b)3.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is the state agency responsible for regulating the practice of community association management pursuant to section 20.165, and chapters 455 and 468, Part VIII, Florida Statutes. In February of 2011, Respondent, Carl Allen Quesinberry, submitted an application for licensure as a community association manager to the Department. In May of 2011, the Department notified Respondent that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Specifically, the Department indicated Respondent has exhibited a pattern of unlawful behavior which would indicate Respondent has little regard for the law, the rules of society, or the rights of others, and used the term "habitual offender" to describe him. A review of Respondent's criminal history discloses a series of 12 criminal convictions during the time period beginning May 5, 1985, through November 14, 2007. Specifically, Respondent was found guilty of the following criminal law violations on the following dates: Reckless Driving, May 3, 1985; Driving Under the Influence, April 4, 1996; Battery, September 27, 1996; Battery, August 15, 2001; Misdemeanor conviction, December 8, 2003; Two convictions for Battery, March 31, 2006; Revocation of Probation, March 29, 2007; Two convictions for Trespass of an Occupied Dwelling, June 29, 2007; Revocation of Probation, November 14, 2007; and Violation of Domestic Violence Injunction, November 14, 2007. A review of the criminal history for Respondent shows that he has not had any arrests, pleas, or convictions since November of 2007. At the time of Respondent's application for licensure as a community association manager in February of 2011, it would have been over three years since Respondent had encountered any legal difficulties. Respondent presented the testimony of Michael Gerrity, the CEO of the World Property Channel in Miami, Florida, as a factual witness in this matter. Mr. Gerrity runs one of the largest real estate global news networks in the country. His company covers residential and commercial real estate news and trends. Mr. Gerrity testified he has known Respondent since ninth or tenth grade from attending the same high school, Lyman High School, in Longwood, Florida. He testified that he has known Respondent to be an honest and trustworthy individual in his real estate dealings and transactions. He believes Respondent has respect for others and the law, and that Respondent's criminal troubles have never affected his business dealings or those of his clients. Respondent has represented a wide variety of real estate clients, from those investing in property to those leasing space for their businesses. Respondent has represented Fortune 500 Companies as well as smaller local companies in his real estate dealings. Mr. Gerrity, Anthony VanDerworp, and Michael LaFay (Respondent's criminal defense attorney) testified that the bulk of Respondent's criminal matters stemmed from Respondent's dysfunctional relationship, which involved both individuals drinking. Messrs Gerrity, VanDerworp, and LaFay all believe Respondent has changed his life and his focus in the last three or four years. Respondent has undergone substance abuse counseling and his testifying witnesses all believe he has overcome his addiction and will continue to serve his real estate clients well in the future. Respondent did not offer any testimony or evidence from his counselors or physicians that he has overcome or controlled his prior substance abuse addition, so the evidence supporting his changed life is based upon his testimony and the anecdotal testimony of his friends, Messrs Gerrity, VanDerworp, and LaFay. Respondent testified that he has received counseling, moved to Kentucky, gotten married, had a child, received real estate licenses in both Kentucky and Alabama, and turned his life around. Respondent has been licensed in Florida for more than 25 years as a real estate broker. During that time, he has not been disciplined by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order denying Respondent's application for licensure as a community association manager. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 16th day of May, 2012. COPIES FURNISHED: C. Erica White, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Carl Allen Quesinberry 329 South Garcon Point Road Milton, Florida 32583 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Division of Professions Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact Respondent was born on February 4, 1957. He attended the Orlando Police Academy from March to June, 1980. Academically, he ranked eighth among the 47 recruits. He received the Mayor's Award for overall performance. In 1980, after graduating from the Orlando Police Academy, Respondent joined the Orlando Police Department. He completed his field training without incident and then was assigned to patrol duty. After about six months, Respondent, who was already serving as an instructor at the Orlando Police Department, was requested to be an assistant squad leader. An assistant squad leader performs all of the duties of the sergeant when the sergeant is absent. After about six months as an assistant squad leader, a major asked Respondent to become field training coordinator in the training section. After a year on this assignment, Respondent was promoted to sergeant and then spent another year on the road as a patrol sergeant. At this point, the major in charge of the field operations bureau of the patrol division, asked Respondent to become his administrative assistant. Respondent served two majors a total of about a year in this position. Respondent was on track toward entering management in the police department. After a year as an administrative assistant, Respondent was assigned to the criminal investigation division where he was in charge of the youth section. This was Respondent's position when he left the Orlando Police Department in the middle of 1986. In early 1985, Respondent met Donna Jackson while he was working off- duty. At this time, Respondent and his wife had been separated since late 1983 or early 1984. After the initial meeting and before any additional encounters, Respondent ran a background check on Ms. Jackson and found that she had been on probation about three years earlier for possession of a controlled substance. When Respondent informed Ms. Jackson that her background precluded any relationship due to his employment, she began crying and told him that she had been trying to put her life back in order. That evening, Respondent and Ms. Jackson commenced an intimate relationship. A few months into the relationship, Respondent learned that Ms. Jackson had been misleading him and was not trying to get her life back together. By August or September, 1985, the relationship began to deteriorate. Ms. Jackson began to consume alcohol heavily and having male visitors late at night. Respondent and Ms. Jackson began to fight. The domestic disputes occasionally involved some physical contact, but the contact was insubstantial. One evening, Respondent and Ms. Jackson had gone to a nightclub in Seminole County where they met a woman who invited them to a party at her residence. As they began to leave the parking lot of the nightclub, Ms. Jackson and the woman lit up a marijuana cigarette. Respondent immediately objected and insisted that he and Ms. Jackson go home, which they did. However, Respondent, who lacked the power to arrest Ms. Jackson and the woman because it was a misdemeanor outside of his jurisdiction, did not report the incident to the Seminole County Sheriff's Office. At this point, Respondent learned from Ms. Jackson's mother the severity of her past drug problems. Respondent broke off the relationship at this point, expressing a desire to remain friends only. By April, 1986, Respondent had not seen Ms. Jackson for a couple of months. Ms. Jackson's mother telephoned and told him that Ms. Jackson had taken a turn for the worse and had lost her apartment. Ms. Jackson, who was abusing drugs heavily again, and her young daughter were living on the streets. Ms. Jackson's mother begged Respondent to help them. At about this time, Ms. Jackson had been arrested in Orlando for driving without a license. She had asked that one of the officers contact Respondent. When he spoke with Ms. Jackson, Respondent assured her that he would try to help her as a friend. Released before her court appearance, Ms. Jackson failed to appear in court. Having spoken with Ms. Jackson's probation officer about the possibility of admitting her into a rehabilitation program, Respondent informed Ms. Jackson that he would arrest her if he saw her driving because he knew she no longer had a license. Respondent and the probation officer thought that such an arrest might help them find a place for Ms. Jackson in a program. Respondent later saw her driving an automobile, arrested her, and contacted her probation officer about placing her in a program. However, she bonded out, of jail before they could do anything. Shortly after Ms. Jackson was released from jail, the probation officer caused an arrest warrant to be issued for Ms. Jackson for violation of the conditions of her probation. Again, the intent was to use this means to find her a place in a rehabilitation program. The morning that the violation-of probation warrant was issued, which was on or about September 23, 1986, Ms. Jackson's mother telephoned Respondent and told him that she knew where Ms. Jackson was. At that point, the probation officer informed Respondent that a facility had a bed available for Ms. Jackson if they could detain her involuntarily. Respondent immediately found Ms. Jackson and arrested her. A minor scuffle occurred between Respondent and a female companion of Ms. Jackson, and Respondent soiled and tore his suit. Respondent then began to transport Ms. Jackson in an unmarked vehicle to the booking department. After learning that they did not yet have the violation-of-probation warrant, Respondent pulled the car over and he and Ms. Jackson began to talk about why she had refused his help. Ms. Jackson then asked if Respondent would take her to see her mother before taking her to jail. Although they were near the booking department at the time and Ms. Jackson's parents lived 5-10 miles away, Respondent agreed to take her to see her mother before going to jail. While at the parents' home, Respondent, who is a careful dresser, noticed for the first time the condition of his suit as a result of the earlier scuffle. When they left the parents' home, Respondent decided to drop by his apartment in order to change his clothes before taking her in for booking. While at the apartment with Ms. Jackson, Respondent was unable to resist her entreaties to have sex with her one more time. Following sex, he took her to the booking department where she was processed on the violation-of- probation warrant. Upset that Respondent had arrested her and refused to let her go, on October 9, 1986, Ms. Jackson falsely accused Respondent of raping her when they had intercourse in his apartment on the day of her arrest. Respondent cooperated fully with the internal investigation and candidly answered all questions asked of him. He resigned from the Orlando Police Department at that time. Shortly after this incident, Respondent began to see his estranged wife again and, about two or three months later, they were reconciled. Until Ms. Jackson's false charges were resolved, Respondent worked as a salesman for Cablevision of Central Florida where he quickly emerged as one of the top three sales representatives. He also underwent extensive counselling with his pastor at church and other ministers. Several of the ministers testified at the hearing as to Respondent's good moral character, notwithstanding the obvious mistakes he made with respect to his relationship with Ms. Jackson. The state attorney declined to prosecute the case and the charges were dropped in June, 1987 Respondent immediately began applying to other police departments for a position as an officer. After several unsuccessful attempts, he finally was offered an entry-level officer's position with the Titusville Police Department. Although he had made about $37,000 during the past ten months as a salesman, he agreed to an $18,000 annual salary with the Titusville Police Department because of his love for law enforcement. Respondent is currently assigned to the tactical unit of the Titusville Police Department. His record has been exemplary. His performance under pressure, including on one occasion the fatal shooting of another officer, has been outstanding, and he has assumed a significant leadership role among the officers in the department. Numerous law enforcement officers testified on behalf of Respondent. Several testified that domestic disputes of the type in this case are not uncommon among law enforcement officers. Several testified that they would have done nothing under the circumstances had they observed Ms. Jackson and the other woman smoking marijuana outside of their jurisdiction. The testimony of three witness has been given considerable weight. Ms. Jackson's parents testified to her manipulativeness and, more importantly, the positive effect that Respondent had had upon her. Regrettably, they testified that she has not recovered from her battle with drug abuse and they were, at the time of the hearing, unaware of where she was living. Titusville Police Chief Charles Ball, who has been in law enforcement for over 20 years and chief of the department for 10 years, testified that the revocation of Respondent's certificate would represent a loss to the Titusville Police Department and law enforcement generally. Chief Ball testified that Respondent is of good moral character, even considering the poor judgment described above.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 9th day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Stewart Cohen, Esq. Pilacek & Cohen 1516 East Hillcrest Street Suite 204 Orlando, FL 32803 Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin, Executive Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esq. General Counsel Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact The facts in this case were undisputed by the individuals having personal knowledge of the incidents and may be summarized in narrative form. Three young road guard inspectors including Respondent Aaron Alderson, occupied Inspection Station 9A on I-75 during the early morning hours on September 30, 1977. Little traffic had passed during the preceding 2 or 3 hours and idleness and exuberant youth brought forth ideas for diversion. Earlier in the evening salt had been sprinkled on Alderson. Around 4:00 a.m. Perry, one of the men in Station 9A, removed his belt and gun before going to the toilet. While he was in the toilet Alderson, as a practical joke, removed the cylinder from Perry's revolver and replaced the revolver in its holster. When Perry came out and put on his belt and gun, Alderson immediately commented to Perry that he would have a hard time firing his gun. Perry then looked at his gun, saw the cylinder missing and he and Alderson replaced the cylinder thus restoring the weapon to operation. Shortly thereafter Alderson and Perry began friendly bumping into each other and then decided to go outside where there was more room for exercise. They removed their belts and guns, leaving them in the station, and went to the side of the building where they began friendly tussling. During this time the other occupant of Station 9A, Hudson, remained in front of the station keeping a lookout for trucks. When a truck entered the ramp, the horseplay was stopped until after the truck had departed. The occupant of Station 9B across the highway from Station 9A was also out in front of his station and could see Alderson and Perry in the lights from Station 9A. After 10 or 15 minutes of horseplay consisting of friendly grappling and tussling, Anderson and Perry had expended sufficient energy to return to the more sedentary chore of waiting for approaching trucks. At all times involved in these incidents, both parties were in uniform, the sun lacked several hours of announcing the approach of day, little, if any, traffic passed Station 9A on the I-75 and the uniforms of Alderson and Perry were neither dirtied nor mussed. As a result of the above incidents, Perry was suspended from duty without pay for 5 days and Alderson was suspended from duty without pay for 10 days. Apparently no appeal was taken by Perry but Alderson's suspension cost him his biweekly salary of $292.63, less withholdings. In 1976, legislation was passed authorizing the arming of road guard inspectors and they were first armed, after completing Police Standards Training, in late 1976. At the time they were authorized to carry arms, they were issued a copy of the Firearms and Ammunition section from the Department of Agriculture's Policy Manual and told to become familiar with it. A copy of this instruction was admitted as Exhibit 1. Respondent acknowledged that he was given a copy of the instruction offered as Exhibit 1 at the time he was authorized to carry a weapon but denies that he read paragraph E thereof with full understanding. Alderson appears to have been employed in 1975, as a road guard inspector and received his first employee performance review dated 11/05/75. Two additional evaluations dated 6/14/76 and 4/10/77, were admitted into evidence with the initial evaluation as a composite exhibit 5. It is noted that Respondent's performance scores, prepared by his supervisor, have increased with each subsequent evaluation. In his latest evaluation Alderson was rated as exceptional and one of the most knowledgeable inspectors in the division. During Alderson's testimony he was open, forthright and responded to all inquiries with composure and decorum. He freely admitted the facts as noted above and acknowledged he now realizes the seriousness of tampering with a weapon as a practical joke. His primary concern with this no appeal was his conviction that the punishment was not commensurate with the offenses and that he had not been given an opportunity to state his side of the case to the superior who actually recommended the punishment before it was approved and awarded. The road guard inspector, who inadvertently disclosed the incident to Roger Pittman, the assistant chief, Road Guard Bureau, who appears to have been the prime mover in the punishment awarded, testified that he felt so bad about the incident he thought about resigning from the road guard. The demeanor of all witnesses leads the undersigned to conclude that the manner in which this incident was handled was detrimental to the morale of the inspectors in the road guard bureau.
The Issue The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.
Findings Of Fact Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.
Recommendation It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The substance of Petitioner's proposed findings of fact have been accepted. Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Peter Kneski, Esquire Biscayne Building, Suite 626 19 West Flagler Street Miami, Florida 33130 Rod Caswell, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him. As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back. Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that." As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida. DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708 Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Tavalario 270 Southeast Second Avenue Pompano Beach, Florida 33060 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on January 21, 1975, and was issued certificate No. 02-13392. On November 29, 1987, the Respondent was arrested by Officer Carl Matrone of the Opa Locka Police Department. During the course of this arrest, Officer Matrone seized a plastic bag which contained in fact 1.0 grams of cannabis, as the term is defined and used in Sections 893.02(3) and 893.03(1)(c)4, Florida Statutes. This amount would yield approximately one marijuana cigarette in volume. As a result of this arrest, the Office of the State Attorney in and for the Eleventh Judicial Circuit charged the Respondent by affidavit with a violation of Section 893.13, Florida Statutes, by unlawful possession of less than twenty grams of cannabis. The affidavit was filed in the County Court in and for Dade County. On February 26, 1988, the Respondent entered a plea of nolo contendere to the charge as set forth in the charging document. The Court accepted the plea, withheld an adjudication of guilt, and placed the Respondent on a six month period of reporting probation. Furthermore, on October 3, 1988, the Court ordered that the records in this misdemeanor case be sealed. The underlying facts which gave rise to this criminal misdemeanor follow. On November 29, 1987, Officer Matrone observed a Dodge van which was being driven by Respondent at approximately 11:45 a.m. The van was traveling north toward 130th Street on N.W. 30th Avenue when it crossed the median strip and parked in front of an apartment building. This apartment building is known to the police as a narcotics location since numerous arrests have been conducted in the area. As soon as the van pulled over, Officer Matrone observed an unidentified black male approach the van and exchange a small package for an unknown amount of paper money. Respondent received the package and, as Officer Matrone approached, the black male fled on foot. Respondent pulled away from the stop and proceeded to the corner traffic light with Officer Matrone following. When Officer Matrone turned on his siren, the Respondent immediately made a left turn and pulled into the first available parking place. Officer Matrone then asked Respondent to exit his vehicle which he did. Officer Matrone observed Respondent throw a small plastic bag to the ground as he exited the van. The contents of this bag were later tested and were found to contain cannabis. Respondent was not on duty on November 29, 1987. He was, at that time, employed by the Miami Police Department. Lt. Blom, who supervised all of the street officers on the day shift for the Miami Police Department, was notified that Respondent was being held in connection with the incident described in paragraphs 5-9. Lt. Blom went to the Opa Locka Police station and relieved Respondent of duty. Respondent told Lt. Blom "I made a mistake." During the time Lt. Blom talked with Respondent, it did not appear to Blom that Respondent was under the influence of drugs nor did Respondent admit that he had used drugs. Arthur G. DeNunzio, Sr. has known Respondent for over fourteen years. According to Mr. DeNunzio, Respondent has a good reputation in his church and in the community for honesty and integrity. Respondent's moral character is known by Mr. DeNunzio to be good. James Robinson has known Respondent for approximately ten years. Respondent has been employed by Mr. Robinson for approximately five months. According to Mr. Robinson, Respondent has a reputation as a good worker, a man of his word, and a man who gets things done timely and properly. Respondent is thought to be honest, having integrity, and of good moral character. Mr. Robinson entrusts large amounts of money to Respondent's care and has no reservations regarding his judgment or moral character. Emerenciano Soles has known Respondent for approximately sixteen years. According to Mr. Soles, Respondent has a high reputation in his community for honesty and for good moral character. On November 30, 1987, Respondent resigned from the Miami Police Department. During his tenure with the department, Respondent had received good work evaluations and several commendations.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent. DONE and RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 2Oth day of January, 1989. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 Northwest 25th Street Suite 202 Miami, Florida 33172-2108 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992, as amended, the Act or Chapter 760, Florida Statutes.
Findings Of Fact The Palm Beach County Sheriff's Office is a law enforcement agency that employs roughly 3,400 individuals, of whom approximately 1,200 are sworn law enforcement officers and 700 are sworn corrections officers. The remaining employees are civilian or non-sworn. Murphy was hired as a deputy sheriff by PBSO on October 26, 1992. He was continuously employed in that capacity until his termination on October 11, 2002. For portions of the time he worked for PBSO, Murphy also was employed at a Home Depot store and in his father's towing business. Murphy’s career at PBSO was the fulfillment of a life dream, one for which he had worked extraordinarily hard. Murphy's father worked in law enforcement, and instilled within his only son a dream "to serve and protect." Despite his family background, Murphy was not an obvious candidate for a career in police work. Murphy was a marginal student all his life. He failed second grade, and passing any academic subject was a struggle. Yet, he persevered, determined to realize his dream of following his father's footsteps. Murphy worked long hours on schoolwork, sports, and in the family towing business. He was able to attain a high school diploma by applying himself diligently to his academics and seeking out extra help. With constant practice and repetition of his class work, Murphy was able to master material well enough to pass necessary courses, but he was not good at transferring knowledge and information to other settings. Despite his weak academic history, or perhaps because of the perseverance it showed, Florida State University awarded Murphy a partial football scholarship. In pursuit of his life dream, Murphy chose to major in criminal justice. Again, he experienced academic difficulty. As he had done in grammar school and high school, Murphy sought out extra tutelage and put in whatever hours it took to complete his degree. In due course, Murphy applied for and obtained a job at PBSO, having fulfilled all its employment criteria, including being licensed to carry a firearm and having passed a psychological evaluation. Murphy's first assignment was road patrol. Road patrol in most law enforcement agencies, particularly those in large urban areas such as Palm Beach County, is an entry-level position, and a baptism by fire. Every traffic stop is potentially life threatening. Road patrol officers may be called upon on a moment's notice to provide back up to fellow officers who are under fire. Virtually every interaction with the public calls for grace and good judgment under stressful circumstances. The most ordinary of days on road patrol result in a need to generate reports. There are, as Murphy noted, "hundreds of formulas" which deputies must understand so that they can properly document traffic accidents. A working knowledge of Florida Statutes, criminal and civil procedure, and related court rules, is also required. It soon became apparent that Murphy was unsuited to road patrol. With its incessant demands upon him to quickly access and apply academic training to the infinite variables of street policing, road duty revealed that Murphy was unable to translate his classroom learning to the demands of the job. His supervisors were therefore obliged to spend a disproportionate share of time addressing situations created by Murphy's sub-par performance. After two years, Murphy was assigned to Palm Beach International Airport (PBIA). Murphy found this position more congenial. Freed of the stress of road patrol and its unceasing paperwork demands, Murphy’s weak academic skills were no longer a constant irritant to his supervisors. Nonetheless, Murphy's annual job evaluations make clear that in either assignment, his job performance was marginal. Murphy maintained excellent physical fitness and a professional appearance at all times, but was often rated borderline in areas involving judgment, ability to withstand pressure, and relations with colleagues and the public. As far back as his 1993-94 evaluation, Murphy's supervisors cited concerns regarding his common sense, and his ability to make sound decisions and to exercise good judgment. Murphy found it difficult to stay awake when assigned to the midnight shift, a problem that was easily remedied with a schedule change. Much more problematic was his difficulty in quickly and effectively writing reports. Murphy's deficiencies in report writing were noted on at least three annual evaluations, and PBSO made a good faith effort to assist Murphy in remediating his deficiency by providing him extra report writing training. Murphy places substantial significance upon an incident which he states occurred in April 1995 when he was on routine road patrol and was one of several deputies asked to respond to a domestic disturbance call. The incident involved unholstering his gun. Based upon Murphy's description of the incident and resulting symptoms years after the fact, doctors diagnosed PTSD. The 1995 incident was not documented in any PBSO records presented at hearing. The only evidence regarding PTSD is contained in Murphy's description of the event and his reaction to it, which he related to a number of doctors he saw in connection with his pending dispute with PBSO regarding his fitness for duty. Murphy expressed to some of these doctors that the transfer to PBIA was provoked by the 1995 incident, but there is no record or testimony corroborating Murphy's opinion in this regard. Murphy has always enjoyed his posting at PBIA, but his personnel file reflects that after three years there, his job performance remained well below reasonable expectations. Although he could handle most of the everyday tasks presented to deputies assigned to the airport, he at times appeared confused when called upon to make a decison for which there was no blueprint. He lacked the knowledge of criminal law and procedure, as well as basic airport operation, reasonably expected of a deputy with his experience. Supervisors gave Murphy credit for a "can-do" attitude and for promptness. However, he had a propensity to blame others or make excuses for his mistakes. It followed that Murphy continued to require a disproportionate share of attention of supervisors, even on routine decisions. Several years into his career, he continued to struggle with basics, for example, maintaining composure when challenged by members of the public or given constructive feedback by colleagues or supervisors. In 1998, it was recommended that Murphy be required to re-enter the field training officer ("FTO") program, and spend at least six months on road patrol to provide "much needed experience and the self confidence that is presently lacking." By the 1998-99 evaluation, supervisors' impatience with Murphy was growing. While acknowledging his ambition and willingness to pursue educational opportunities, the report noted his continued propensity to become aggressive with co- workers and antagonistic to supervisors and "apparent inability to control his temper." Murphy completed the FTO remedial training recommended the previous year, as well as eight additional courses aimed at improving his performance, and achieved an overall performance evaluation of "average, meeting the basic requirements of most [job] descriptions." In early 2000, Murphy received a 90-day unsatisfactory performance notice. In-house remedial training was offered, but the tone of the evaluator was decidedly impatient and frustrated. Murphy's supervisors began to document specific instances of their dissatisfaction with his performance. One example from his 2000 evaluation reads: "After an incident where [Murphy] had taken 21 hours to complete a simple drug arrest, he was placed with an FTO in the airport. These training sessions had little effect on his overall job performance. " While some improvements were noted in 2001, Murphy was again counseled on common sense, judgment and job knowledge. Against this background, an incident occurred on January 18, 2002, which would eventually result in Murphy’s termination. Early that morning, Murphy was off-duty and in a hurry to catch a flight out of PBIA to Washington D.C. via Charlotte. As a result of five years’ experience enforcing airport security protocols, Murphy was well aware that it was impermissible to leave baggage at the skycap station while he parked his car. However, Murphy identified himself as a deputy assigned to the airport and insisted that the skycaps check his baggage for him while he parked. Inside the airport, Murphy observed a lengthy passenger screening line. Murphy admits to feeling "entitled," in that this would be his first vacation in two years. Determined to make his flight, he formed an intent to cut to the front of the line to pass through the metal detectors and then to his gate. Murphy made contact with a fellow deputy, David Shoemaker (Shoemaker) who had been assigned to the airport less than six months. Shoemaker told Murphy to come around the metal detector, which he did, chatting briefly with National Guard officers on duty, as well as the "screening people,” all of whom were well known to him from his years of service at PBIA. At hearing and at all times since the incident, Murphy has attempted to deflect responsibility, saying, ”My intent was to cut in line. My intent was to go through the screening process. However, the deputy sheriff was on duty. I did what I was told, and I walked around the screening area. " It was Murphy, not Shoemaker, who was the experienced sheriff's deputy in this situation. Murphy was reasonably expected to know, particularly in the post-September 11 environment, that it was inappropriate, and possibly illegal, to seek special treatment based upon his personal acquaintance with security personnel. Members of the general public witnessing this "professional courtesy" could be reasonably expected to be irritated, angry, or even in fear for their safety, inasmuch as Murphy was dressed in civilian clothing; the public had no way of knowing that he was any more "safe" than the wheelchair-bound elderly people and babies who are screened in the interests of passenger safety. In this instance, one person was sufficiently annoyed or concerned to report the incident to airport officials and to seek an explanation. By this time, Murphy and his bags were enroute to Charlotte, N.C. At the Charlotte Airport, Murphy and his luggage were briefly detained and searched, and he was thereafter allowed to proceed to his final destination. At some point while on vacation, Murphy called a person named Gilbert Johnson, whom Murphy identified as a friend of his from the National Guard. According to Murphy, "Gilbert had told me that everybody was telling me [sic] I was going to jail for a federal crime, and I was very scared and very worried. " There was no evidence to suggest that Murphy was ever in danger of being jailed for a crime, federal or otherwise. However, the poor judgment he exercised in the service of making his plane would, in time, result in credible medical evidence that Murphy could not, at all times relevant, fulfill the requirements for service as a sheriff's deputy, with or without accommodations. Shortly after the January 18 incident, PBIA officials asked that Murphy be removed from his airport posting, at least until the incident could be investigated. Even before he returned from vacation, PBSO had decided that Murphy would be reassigned to road patrol. Upon his return to work, Murphy met with supervisors. At some point in this meeting, he ceased to participate, instead exercising his right to be represented by counsel. Murphy was informed that he would be suspended with pay pending the outcomes of routine criminal and administrative investigations. Although the facts surrounding the incident were in all material respects undisputed, it took months for PBSO to conclude its internal affairs investigation, which ended with a recommendation that Murphy receive a two-day suspension for having improperly used his status as a law enforcement officer to gain special privileges not available to the general public. No state or federal agency pursued criminal charges against Murphy. Neither the internal affairs investigation nor criminal investigation(s), if any there were, played any role in Murphy's eventual termination. Murphy's anxiety about what he perceived as immense threats to his employment and to his liberty persisted and fed on themselves. The delay in completing the internal affairs investigation exacerbated his fears, particularly his baseless belief that he would be sent to jail for having sought and received special treatment at PBIA. Murphy persisted in the belief that jail was a real possibility, and he was consumed with worry. Almost as distressing to Murphy was the possibility that he would be returned to road patrol, a job for which Murphy correctly believed he was unsuited. In the immediate aftermath of the PBIA incident, Murphy's problems, real and imagined, combined to cause him to decompensate. He became physically ill and emotionally distraught to a degree which rendered him unfit for duty. To his credit, Murphy informed his supervisor that he was uncertain of his present ability to adequately back up fellow officers should the need to do so arise. Concerned for Murphy's well being, a PBSO supervisor sent to his home deputies to check on him, and immediate arrangements were made to have him evaluated by Dr. Raul Diaz (Dr. Diaz). Dr. Diaz supported Murphy's belief that he was at the time temporarily unfit for duty. Dr. Diaz recommended psychological evaluation by Dr. Myles Cooley ("Dr. Cooley"). At hearing, Murphy stated his belief, but offered no evidence, that officers who are the subject of an internal affairs investigation are granted administrative leave to preserve their full salary and benefits pending the outcome of the investigation. In this case, PBSO insisted that Murphy take family medical leave beginning on Februry 1, 2002. By this time, Murphy felt he was able to return to work and sought to persuade PBSO to return him to PBIA. To that end, he cooperated with PBSO's efforts to obtain medical and psychological evaluations. He also proceeded on a parallel track, seeing medical professionals of his own choosing and cooperating in the testing, evaluation, and medication regimens they recommended. In February 2002, Murphy's attorney provided PBSO with signed prescription pad notes from two medical doctors, Sanford Kaufman and Kevin Inwood. Dr. Kaufman’s note read, "No psych diagnosis other than reactive stress. Okay to return to work, no restrictions." Dr. Inwood wrote, "Pt. Is fit for duty after today exam not completed." Neither note indicated the respective doctor's area of specialization, credentials, what tests had been performed on Murphy, what information concerning Murphy had been furnished to them, and from what sources. Standing alone, these doctors' notes did not furnish a factual basis upon which a reasonable person could conclude that Murphy was fit for duty. Meanwhile, Murphy continued to cooperate in evaluations commissioned by PBSO. Dr. Cooley saw Murphy in March and April 2002, and conducted exhaustive testing, including evaluations for attention dysfunction, learning disabilities, and other disorders that might affect his job performance. In speaking with doctors in the course of these evaluations, and in his testimony at hearing, Murphy acknowledged that both before and after being diagnosed with ADD, ADHD, and PTSD, he was fully able to perform the numerous activities of daily living pertinent to a man of his age who has always been active in sports and has held physically demanding jobs. Murphy is unrestricted in his ability to lift, see, hear, breathe, swim, sit, stand, bathe, and dress, all of which are necessary to the performance of active police work, and countless other jobs requiring an individual to be in good physical condition. At all times material to this case Murphy is qualified to work in construction, having built the home he lives in. He is also licensed to operate any type of vehicle, continues to work in the family towing business, and has worked in retail. In his final report dated April 8, 2002, Dr. Cooley concluded, in pertinent part: In this examiner's opinion, Mr. Murphy does have Attention Deficit Hyperactivity Disorder and is significantly intellectually limited. He does not qualify for a diagnosis of a learning disability because his IQ and his academic skills are quite similar. In a more generic sense, however, he is clearly learning disabled based on his limited cognitive skills particularly in the verbal domain. Finally, Mr. Murphy appears to be experiencing a Generalized Anxiety Disorder or an Adjustment Disorder with Anxiety. Mr. Murphy's behavior in the presence of this examiner indicates severe anxiety and fear that he reacts to with anger, denial, defensiveness, and suspicion and he tries to protect himself from people and procedures he does not fully understand. He could truly benefit from some counseling as he awaits the resolution of his employment status. Dr. Cooley's evaluation was forwarded to Murphy's counsel, and to Dr. Diaz, who, after re-evaluating Murphy and reviewing prior test results and Dr. Cooley's report, prepared a second report for the PBSO. In this report dated May 9, 2002, Dr. Diaz concluded that "Murphy, within reasonable probability remains not fit for duty to function in law enforcement at this time." Dr. Diaz left open the possibility that with appropriate treatment, Murphy may, at some future date become fit for law enforcement duty. However, on September 16, 2002, Murphy's own doctor, forensic psychiatrist Harley Stock (Dr. Stock), opined in pertinent part: . . . Murphy is likely to have difficulties in carrying out the following specific duties and responsibilities of a law enforcement officer: Subdue resisting offenders using appropriate force, including the use of deadly force – Deputy Sheriff Murphy may become emotionally overwhelmed if placed in a position in which lethal force may be necessary. In this regard, such behavior may lead to the endangerment of the public or other officers. Conduct law enforcement investigations – Deputy Murphy has a difficult time formulating appropriate law violations. Because of his limited cognitive abilities, he will have difficultly preparing and distributing reports. These deficits may manifest themselves in difficulty coordinating activities at crime scenes; collecting crime scene evidence; conducting interviews, taking sworn statements, formal confessions or depositions; preparing reports of affidavits; and presenting testimony in both civil and criminal proceedings. Should Deputy Murphy be placed in a situation in which his anxiety level overwhelms him, he will have difficulty interacting with the public. His judgment is likely to be impaired in such a situation and he may not follow appropriate procedures. He is also likely to have difficulties in the following area performance aptitudes: Data Utilization – Deputy Sheriff Murphy will have difficulty calculating or tabulating data or information in a systemized way. He also may have difficulty performing actions subsequent to these computational operations. In terms of situational reasoning, Deputy Sheriff Murphy is likely to have difficulty exercising good judgment and decisiveness in those situations that are unexpected and involve exposing the Palm Beach County Sheriff's Office to significant litigation. Based on the above, it is this examiner's opinion that Deputy Sheriff Murphy should be considered permanently unfit for duty. It is further my opinion that no reasonable accommodation can be offered and that his impairment is a direct result of his employment as a law enforcement officer. . . . No purpose is served by additional invasive recitation of the content and conclusions of reports and testimony provided by doctors who evaluated Murphy. The evidence regarding Murphy's fitness for duty, with or without accommodation, has been carefully considered and demonstrates that no combination of job accommodations, medication, treatment or training, would render Murphy able to fulfill the requirements for service as a deputy sheriff at any time material to this case, including at the time he was terminated on October 11, 2002. Notwithstanding the medical evidence, Murphy contends that PBSO had, and continues to have, the ability to ". . . put me into another law enforcement position, which they can clearly still do." With all respect for Murphy's opinion, the unambiguous testimony provided by Respondent’s human relations office is that PBSO does not distinguish between what a deputy is required to do at the airport, on road patrol, or behind a desk. To the contrary, officers assigned to PBIA, or off duty officers for that matter, may be mobilized on a moment's notice to address a profoundly dangerous and chaotic situation, at their assigned post, or elsewhere in the jurisdiction. Contrary to the assertion in his FCHR charge, there was no evidence that Murphy "ask[ed] for help with his law enforcement duties." He rejected as insulting any discussion of being placed in a civilian position or a position involving a substantial wage cut. The only accommodation he sought was re- assignment to PBIA in his former position.
Recommendation Based on the above Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Petitioner’s charge of discrimination and dismissing his complaint. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of August, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael G. Whelan, Esquire Whelan, DeMaio & Kiszkiel, P.A. 80 Southwest Eighth Street, Suite 1830 Miami, Florida 33130 Jack Scarola, Esquire Searcy Denney Scarola Barhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1 by retaliating against Petitioner because he engaged in protected activity.
Findings Of Fact The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Department in 1978 as an Examiner I in Bartow and has continuously worked for the Department since his hiring. He held various positions within the Department through the years, including Supervisor I and Assistant Regional Administrator. In 1998, Petitioner held the position of Hearing Officer in the Bureau of Administrative Review. In February 1998, Petitioner suffered a heart attack and underwent open heart surgery for the placement of two stents to repair the blockage to his arteries. On April 7, 1998, Petitioner submitted to Tommy Edwards, assistant director of the Division of Driver Licenses, a letter requesting a voluntary demotion from Hearing Officer to a word processing position, in order to reduce the stress and pressure of his employment. Petitioner's request was granted. Later in 1998, Petitioner's health improved and he began applying for promotions, but was consistently passed over. He learned that for one Examiner I position, he had been the top candidate, but was not selected because of the letter he had written to Mr. Edwards and because Mr. Edwards had expressed concerns about placing Petitioner in a high stress position. Petitioner wrote a second letter to Mr. Edwards, dated February 9, 1999, to clarify that his physician had given him a clean bill of health, with no restrictions as to the type of job he was able to handle. This situation led to Petitioner's filing a complaint against the Department in 2000, in the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Case No. GC-G-00-0141, based on 42 U.S.C. §§ 12111 et seq., the Americans with Disabilities Act, and Chapter 760, Florida Statutes, the Florida Civil Rights Act. On July 8, 2003, the parties entered into a Settlement Agreement and Release resolving this litigation. As a condition of the settlement, Petitioner agreed to release all claims against the Department connected with his complaint. The Amended Employment Charge of Discrimination, filed on October 26, 2004, with the FCHR, alleges that the Department has denied Petitioner promotions and transfers in retaliation for his previous complaint. At the final hearing, testimonial and documentary evidence was elicited as to Petitioner's applications for six positions within the Department. The selection processes for four of the positions, 903481, 2333, 902315, and 2986, occurred after the Settlement Agreement and Release was signed and less than 365 days before the Amended Employment Charge of Discrimination was filed. The Selection processes for two of the positions, 5350 and 5234, occurred after the Settlement Agreement and Release was signed, but more than 365 days before the Amended Employment Charge of Discrimination was filed. Evidence concerning the latter two positions was admitted for the limited purpose of demonstrating a pattern of discrimination by the Department. The Department's selection process for an open position commences with advertising the opening. Applications are received, and a Department employee conducts an initial screening of the applications to determine which candidates meet the minimum qualifications for the position in question. Those applications passing the initial screening are then subjected to a detailed screening in which they are scored according to work experience and the knowledge, skills and abilities pertinent to the position, as well the state-mandated veterans' preference. The Department personnel in charge of filling the position set a cutoff score to ensure an adequate pool of interviewees, then a panel conducts interviews of the selected applicants. These interviews are scored, and the highest scoring candidate is generally offered the position. The Department does allow the second highest scoring candidate to be selected, if his or her score was within 10 points (on a 100-point scale) of the highest ranked applicant. The applicant interviews are not free-form, but are conducted according to a process dictated by the Department. For the positions in question, the Department provides the interview panel with a list of five questions. Each candidate is given the list of questions and has fifteen minutes to read them and prepare a response. The interview panel then meets with the candidate, asks each question and listens to the answers. The interviewers then score the responses according to an answer key provided by the Department, which contains several "correct" answers to each question. A candidate may receive full or partial credit for his responses, depending on how many of the correct answers he provides. The candidates may also be given written exercises that are graded and scored by the interview panel. Each candidate for a given position is provided the same set of questions and written exercises. The entire selection process, from initial screening of all applicants to final interview scores and selection of the successful applicant, is recorded on a spreadsheet document called the Applicant Selection Guide ("ASG"). Department policy provides that an existing ASG may be used to fill a subsequent comparable position, provided the second position is filled within six months of the process that generated the ASG, and the candidate who fills the second position is the highest ranked candidate remaining on the ASG, or is within 10 points of that candidate. The first position Petitioner applied for was position 5350, a compliance examiner position in Pinellas County for the Division of Motor Vehicles. The application deadline was June 4, 2003. Out of 162 applicants, five were selected for interviews, including Petitioner. At the conclusion of the interview process,3 the highest scoring candidate was Gary Konopka. Petitioner and Allen Shaffer tied for second. The position was offered to Mr. Konopka, who declined it for personal reasons. The position was then offered to Mr. Shaffer, who accepted it.4 Richard Roth was the regional administrator for the Division of Motor Vehicles at the time position 5350 was filled. He retired in August 2003, shortly Mr. Shaffer was hired. Mr. Roth testified that he made the decision to hire Mr. Shaffer, but had no present recollection of how he decided to break the tie between Petitioner and Mr. Shaffer. Mr. Roth had no knowledge of Petitioner's complaint of discrimination, or of his lawsuit against the Department. Assistant Bureau Chief Edwin Robcke, Bureau Chief Charles Gowan, and Margaret Lamar, the senior consultant in the office of employee relations, who investigates discrimination charges within the Department, all testified that they were unaware of any Department-established procedure for breaking tie scores between applicants. Petitioner next applied for position 5234, an operations analyst5 position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was October 31, 2003. Deborah Todd, the program manager who would be the direct supervisor of the employee hired to fill position 5234, performed the detailed screening of the applications. Out of 113 applicants, five were selected to be interviewed, including Petitioner. Ms. Todd conducted the interviews along with Eileen Bishop, an operations analyst in the bureau of administrative reviews. Stephen Walter was the top scoring candidate, but a recent disciplinary action in his current job rendered him ineligible for the promotion that position 5234 would have offered. Ms. Todd made the decision to offer the position to Deborah Leto, who had the second highest score. Ms. Leto accepted the position. Petitioner finished fifth out of the five candidates interviewed,6 and was notified by letter dated January 2, 2004, that he had not been selected for the position. At the hearing, Ms. Todd testified that Petitioner's interview was "fair," in the sense of "not bad." His answers to the oral questions were too short, but he did receive the maximum points possible for his written work exercise. Ms. Bishop likewise testified that Petitioner did "fair" on his interview. Ms. Todd testified that she had not met Petitioner before the interview and had no knowledge of his prior lawsuit against the Department. Petitioner next applied for position 902315, a compliance examiner position in Orange County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was March 4, 2004. The ASG for position 902315 indicates that the interview process was conducted by Department employees Donn Lund and Marie Smith of the Winter Park office. Neither Mr. Lund nor Ms. Smith was called to testify in this proceeding. The ASG indicates that approximately 125 people submitted applications and that 11 applicants were interviewed. Petitioner had the highest screening score of any candidate. However, it appears that once again Petitioner's interview was less than impressive. The successful applicant, Esteban Capo, received a score of 90 out of a possible 100 points. Petitioner received a score of 37 points, placing him in a tie for last place among the candidates interviewed. At the hearing, Petitioner's recollection of his interview for position 902315 was lacking in detail. He simply testified that he recalled nothing untoward occurring during the interview that would account for his low score. Petitioner next applied for position 2333, a compliance officer position in Hillsborough County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was June 16, 2004. Out of 190 applicants, five were selected for interviews, including Petitioner. In the detailed screening, Petitioner scored 83 points, which tied him for the high score with Lina Botero. Ms. Botero had the high score for the interview process, scoring 82.08 points, was offered position 2333, and accepted the position. Thomas Thayer had the second highest score, with 74.96 points. In August 2004, the ASG for position 2333 was used by region administrator Gary Konopka to fill the opening for position 5350 created by the promotion of Allen Shaffer to a field supervisor position. Position 5350 was offered to Mr. Thayer, who accepted the position. In the interview process for position 2333, Petitioner scored 60.84 points, finishing fourth out of the five applicants interviewed. The interviewers for position 2333 were Mr. Konopka, field supervisor Clyde Schmitz, and Kelly Cook, who no longer works for the Department and did not testify in this proceeding. Mr. Schmitz testified that he had no recollection of Petitioner's interview for the position. Mr. Konopka recalled that Petitioner's answers to the interview questions were "very curt, very brief, almost as if he were going through the motions." In contrast, Ms. Botero was extremely animated and very talkative. Mr. Konopka pointed out that the scoring criteria award points for multiple responses from a candidate, and, thus, Ms. Botero was better served by speaking more. As Mr. Konopka put it, "the more you talk, the better off you are because you may stumble into the answer." Mr. Konopka recalled that Mr. Thayer was a little nervous, but, like Ms. Botero, he gave several answers during the oral questions. Mr. Konopka characterized Mr. Thayer's written submissions as "superb." Mr. Konopka testified that he knew nothing of Petitioner's complaint against the Department at the time of the interviews for position 2333 and that none of the members of the interview panel discussed Petitioner's complaint. Petitioner next applied for position 2986, a senior highway safety specialist position in Orange County7 for the Division of Motor Vehicles. The application deadline was June 29, 2004. Out of 31 applicants, five were selected to be interviewed. Petitioner was not selected for an interview. Dennis Valente, chief investigator of the Division of Driver Licenses, conducted the screening for position 2986. Mr. Valente testified that, after an initial screening to make sure the candidates met the bare minimum qualifications for the job, he then conducted a detailed screening to ascertain the candidates' education, experience, and special knowledge, skills and abilities. After the detailed screening was completed, Mr. Valente set a cut-off score to ensure that five to seven candidates were interviewed. Mr. Valente did not know Petitioner and was not aware that Petitioner had filed a complaint against the Department.8 For position 2986, the cut-off score was established as 88 out of a possible 100 points and five candidates were interviewed. Petitioner's score on the detailed screening was 72 points. Mr. Valente recalled that Petitioner received maximum scores for four out of five of the "experience" factors on the detailed screening, but that he received no points for education. Petitioner is a high school graduate and points were available only for post-secondary education.9 The successful applicant for position 2986, Clark Brookstone, had a master's degree in mass communication, in addition to his bachelor's and associate of arts degrees. Petitioner next applied for position 903481, an operations and management consultant position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was July 6, 2004. Out of 66 applicants, seven were selected for interviews. Petitioner was not selected for an interview. Danny Watford, chief of the Bureau of Administrative Reviews, performed the screening, then conducted the interviews for position 903481 with Deborah Todd. Mr. Watford testified that he performed no initial screening, and that every candidate received a detailed screening. At the time of the screening, Mr. Watford did not know that Petitioner had filed a complaint of discrimination. Mr. Watford set the cut-off for obtaining an interview at 40 points. Petitioner received 24 points on his detailed screening. Mr. Watford testified that Petitioner was minimally qualified for the job, but that the job opportunity announcement stated a preference for a candidate with a bachelor's degree. The successful candidate, Gordon Brown, had a bachelor of science degree from California State University at Fullerton. As noted above, Petitioner is a high school graduate. At the final hearing, Petitioner listed eight other positions for which he applied and was not offered the job. These positions were not applied for or filled within the time frame pertinent to this proceeding. Petitioner conceded that there was no direct evidence of discriminatory or retaliatory intent on the part of the Department employees who conducted these employment screenings and interviews. In fact, those Department employees who were familiar with Petitioner spoke highly of his work. Charles Gowan, Bureau Chief of Field Operations, testified that Petitioner has done a good job as an employee in his bureau.10 On August 8, 2003, Mr. Gowan awarded Petitioner with a letter of commendation for Petitioner's work as temporary office manager for the Lakeland driver license office. Patricia Connery, a senior highway safety specialist with the Department, testified that Petitioner had done a good job as her supervisor in 1994. Ms. Connery also testified that she obtained her current position through a telephone interview, without going through a formal application and interview process. Petitioner contends that this incident, coupled with the unexplained method used to break the tie between Petitioner and Mr. Shaffer for position 5350, and the alleged subjectivity of the interview process, demonstrates that the Department's selection process is a sham designed to allow the Department's administrators to hire whom they please without regard to the candidates' merits. In this instance, Petitioner alleges, the sham process was employed to retaliate against him for having brought a discrimination complaint and lawsuit against the Department. The evidence established that there were minor variations among the Department's offices as to the precise methodology employed in the hiring process. However, the evidence also established that the process was internally consistent, i.e., any local variations in the process were uniformly applied to all applicants for a given position. Ms. Connery's internal promotion by means of a telephone interview was an aberration and was unrelated to any position for which Petitioner was a candidate. Petitioner contends that someone in the Department's central office in Tallahassee was the real decision maker for these positions, and in each case insured that Petitioner was not the successful applicant. The evidence did not support this contention. In each instance, the hiring decision was made by the senior employee on the interview committee at the district level. While it is true that those decisions were submitted to Tallahassee for ratification, in no instance was the district-level decision overturned. Petitioner did not establish that any of the interview panel members or candidate screeners was aware of his discrimination complaint or lawsuit at the time their respective decisions were made. Mr. Gowan was aware of Petitioner's lawsuit at the time of the interviews for position 2986, but Petitioner was not interviewed for that position. The greater weight of the evidence establishes that, while Petitioner was at least minimally qualified for the positions in question, Petitioner's lack of a college degree and his indifferent interview skills were the chief reasons for his failure to obtain any of the positions for which he was interviewed. The greater weight of the evidence establishes that the Department personnel conducting detailed screening of applicants considered only Petitioner's application and accompanying materials submitted by Petitioner in determining whether, or not Petitioner should be interviewed. Petitioner's applications were treated no differently than the applications of other candidates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Highway Safety and Motor Vehicles did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2006.
The Issue This is a case in which, by Administrative Complaint served on Respondent on September 17, 1985, the Criminal Justice. Standards And Training Commission seeks to revoke Certificate Number 502-3415, which was issued to Respondent on November 5, 1982. As grounds for the proposed revocation it is asserted that Respondent lacks good moral character and is therefore in violation of Section 943.1395(5), Florida Statutes.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Respondent was certified by the Criminal Justice Standards And Training Commission on November 5, 1982, and was issued Certificate Number 502-3415. During December of 1984 and January of 1985, the Respondent was employed as a correctional officer at the Polk Correctional Institution. On January 29, 1985, Polk County Sheriff's Deputy Lawrence Annen and Department of Corrections Inspector Clayton Lambert served a search warrant and conducted a search inside the Polk County, Florida, residence of the Respondent and his wife. Upon the arrival of Deputy Annen and Inspector Lambert at the Respondent's home on January 29, 1985, the Respondent was present and was advised of the warrant and of his constitutional rights under the Miranda decision. The Respondent indicated that he understood his rights. Subsequent to the foregoing, the Respondent led then Deputy and the Inspector to a quantity of cannabis, which was present inside Respondent's residence. The Respondent pointed out the cannabis and stated "here it is" and "this is all I have." During the execution of the search warrant, the Respondent also stated that he and his wife had purchased the marijuana for $25 an ounce or baggie. The cannabis was seized by Deputy Annen as evidence and was later submitted to the Florida Department of Law Enforcement crime laboratory for analysis. It was confirmed by scientific analysis to be 9.1 grams of cannabis. On January 31, 1985, the Respondent was again advised of his constitutional rights under the Miranda decision by Inspector Lambert. The Respondent thereafter admitted smoking cannabis because it relaxed him and admitted giving his wife money with which to buy cannabis. The Respondent readily admitted, during the course of the formal hearing in this case, that he had unlawfully possessed and used cannabis and had furnished the funds for his wife to purchase cannabis. The Respondent was adjudged guilty, on March 20, 1985, as to the criminal charge of Possession of Less Than Twenty Grams of Cannabis before the County Court, in and for Polk County, Florida.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards And Training Commission issue a Final Order revoking Respondent's Certificate Number 502-3415. DONE AND ORDERED this 16th day of May, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 16th day of May, 1986. APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner Paragraph 1 of the Petitioner's proposed findings consists of a summary of the procedural history of this case. It is rejected as a finding of fact, but is incorporated in substance into the introductory information in this Recommended Order. The following paragraphs of Petitioner's proposed findings are all accepted with a few minor editorial changes: 2, 3,-4, 5, 6, 7, 8, 9, 11, and 12. The substance of paragraph 10 of Petitioner's proposed findings is accepted with the deletion of unnecessary subordinate details. Findings proposed by Respondent The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Joseph S. White, Esquire Office of General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Harry C. Frier Post Office Box 2062 Lakeland, Florida 33802 Daryl G. McLaughlin, Director Criminal Justice Standards And Training Commission Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302
