The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed, against his license to practice medicine in the State of Florida.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed to practice medicine in the State of Florida, having been issued license number ME 0003174. Respondent, who was first licensed to practice medicine in the State of Florida in 1946, retired in 1984 and his license was soon thereafter placed on an inactive status. Respondent is registered with the Drug Enforcement Agency, DEA # AP 0114087, authorizing Respondent to issue controlled substances in Coral Gables, Florida. In June 1987, Respondent resided in or near Franklin, North Carolina. Respondent is not licensed to practice medicine in the State of North Carolina, and he is not authorized to issue controlled substances in the State of North Carolina. On or about June 8, 1987, Respondent authorized Kenneth Leon Murphy, a pharmacist who at that time worked at the Revco Pharmacy in Franklin, North Carolina, to fill a prescription for acetaminophen with codeine and to dispense the same to Respondent. Codeine is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes. This prescription was filled on June 8, 1987, by the Revco Pharmacy in Franklin, North Carolina and picked up by Respondent that same day. On June 11, 1987, Respondent wrote a prescription for chloral0 hydrate to be dispensed to himself. Respondent listed his Drug Enforcement Agency number on the prescription. Respondent had the prescription filled by Mr. Murphy at the Revco Pharmacy in Franklin, North Carolina where he personally picked up the prescription. Chloral hydrate is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(q),(r), and (v), Florida Statutes, which reprimands Respondent for these violations, and which places Respondent's licensure on probation for a period of one year. It is recommended that no administrative fine be imposed in consideration of the mitigating factors presented by this case. DONE AND ENTERED this 22nd day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 3670 The proposed finding contained in paragraph ten of the Petitioner's proposed recommended order that Respondent's license is delinquent is rejected as being unsubstantiated by the evidence. The remaining proposed findings of fact submitted on behalf of Petitioner are adopted in material part by the Recommended Order. COPIES FURNISHED: Andrea Bateman, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William S. Piper, Sr., M.D. 1019 Malaga Avenue Coral Gables, Florida 33134 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth B. Basley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application"). Question 8 of that application and Petitioner's answers thereto read as follows: Have you ever been charged with a felony? Yes If YES, give date(s): Dec. 16, 1983 What was the crime? Possession of cocaine & cannabis Where and when were you charged? Dade County, Dec. 16, 1983 Did you plead guilty or nolo contendere? Nolo Contendere on Appeal Were you convicted? Yes - Conviction reversed by 3rd District Court of Appeal Was adjudication withheld? See attachments to application Please provide a brief description of the nature of the offense charged. See attachments to application If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well. Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent. DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 10th day of September, 1987. COPIES FURNISHED: William Gunter Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Angelo A. Ali, Esquire 400 Roberts Building 26 West Flagler Street Miami, Florida 33130 Lealand L. McCharen, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue in this case is whether the Respondent unlawfully and knowingly possessed a controlled substance and, if so, what disciplinary action should be taken.
Findings Of Fact On July 3, 1986, the Respondent was certified by the Criminal Justice Standards and Training Commission, and was issued Certificate No. 03-86-502- 05. Later that year, the Respondent was employed as a Correctional Office at the Broward Correctional Institution. The Broward Correctional Institution is a state prison that houses female prisoners. The Respondent's duties included working inside the prison and working on the perimeter posts. While on perimeter post, the Correction Officers, including the Respondent, would sit in a small car with a loaded 12-guage shotgun and a .38 caliber revolver. The primary function of the perimeter post is to observe the fences of the prison to insure that there is no unauthorized entry into or exit from the prison. On several occasions the Respondent openly discussed with other Correctional Officers the fact that the Respondent used marijuana. On at least one occasion, the Respondent told another Correctional Officer that she (the Respondent) had reported for duty inside the prison with marijuana "joints" in her purse. On another occasion a Correctional Officer who relieved the Respondent on perimeter post smelled what seemed to be the odor of marijuana smoke and observed what appeared to be the remains of a marijuana cigarette. On yet another occasion the Respondent offered to provide marijuana to another Correctional Officer who worked on the same shift. One of the Correctional Officers who worked with the Respondent became concerned about what she had heard and seen regarding the Respondent's use of marijuana and reported her concerns to higher authority at the prison. As a result of such report, on the evening of November 16, 1989, two prison officials approached the Respondent during her break. At that time the Respondent was sitting in her personal vehicle in the prison parking lot. The prison officials requested and received permission to search the Respondent's vehicle. A Marlboro cigarette box containing what appeared to be a partially smoked, hand-rolled marijuana cigarette was found underneath the driver's seat of the Respondent's vehicle. The hand-rolled cigarette found in the Respondent's vehicle tested positive for marijuana. The Respondent was arrested on a charge of introduction of contraband into a state correctional institution. The Respondent later pled guilty and was found guilty of the lesser included charge of possession of marijuana, less that 20 grams.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statues, and Rule 11B- 27.0011(4), Florida Administrative Code, and imposing a penalty of revocation of the Respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of August 1990. MICHAEL M. PARRISH 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 31st day of August 1990.
The Issue Case Number 91-8116EC: Whether the Respondent, Fred Peel, violated Section 112.313(6), Florida Statutes: (1) by failing to have complaint review procedures in place in his office as required by Section 112.533(1), Florida Statutes; (2) by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report; and (3) by attempting to charge $5.00 for copy of the arrest report? Case Number 91-8323EC: Whether the Respondent, John Jenkins, violated Section 112.313(6), Florida Statutes, by attempting to intimidate the complainant into leaving the Washington County Sheriff's offices without receiving a copy of his arrest report?
Findings Of Fact The Respondents. The Respondent, Fred Peel, is the Sheriff of Washington County, Florida. (Stipulated Fact). Sheriff Peel has continuously served as the Sheriff of Washington County for the past fifteen years. (Stipulated Fact). Sheriff Peel is an elected official. (Stipulated Fact). At all times relevant to this proceeding, Sheriff Peel served as a public officer subject to Section 112.313(6), Florida Statutes. The Respondent, John Jenkins, is a captain with the Washington County Sheriff's Department. (Stipulated Fact). Captain Jenkins has continuously served with the Sheriff's Department for ten years. (Stipulated Fact). Captain Jenkins was appointed by Sheriff Peel pursuant to Chapter 30, Florida Statutes. (Stipulated Fact). At all times relevant to this proceeding, Captain Jenkins served as a public officer subject to Section 112.313(6), Florida Statutes. The Arrest of the Complainant. The complainant, Timothy Hinson, was arrested by a deputy of the Washington County Sheriff's Office on November 26, 1990. Mr. Hinson was charged with driving under the influence, driving while license suspended or revoked and refusal to sign citation. (Stipulated Fact). At the time of his arrest, Mr. Hinson was intoxicated. Mr. Hinson's speech was slurred, his appearance was disheveled and his ability to understand verbal communication was poor. After being arrested and transported to the Washington County jail, Mr. Hinson made profane and abusive threats addressed to the arresting deputy and the "Sheriff". Mr. Hinson threatened to have the "Sheriff" removed. Mr. Hinson did not know who the Sheriff was at the time. Mr. Hinson's actions, failed to prove, as suggested by the Respondents, that Mr. Hinson had a vendetta against the Respondents or law enforcement personnel in general. This evidence merely proved that Mr. Hinson was drunk. The parties stipulated that, prior to his arrest on November 26, 1990, Mr. Hinson had been arrested six times since 1983. This evidence failed to prove, however, the Respondents' contention that Mr. Hinson had a grudge or vendetta against the Respondents or law enforcement personnel in general. This evidence suggests that Mr. Hinson has a drinking problem. Mr. Hinson's Effort to Obtain a Copy of His Arrest Record. Just prior to noon on December 28, 1990, Mr. Hinson went to the Washington County Sheriff's offices. Mr. Hinson went to the Sheriff's offices with the intent to obtain a copy of the records related to his arrest on November 26, 1990. (Stipulated Fact). Mr. Hinson was met in the lobby of the Sheriff's offices by Sharon Bellamy, an employee of Sheriff Peel. Mr. Hinson informed Ms. Bellamy that he wanted a copy of his arrest record. Mr. Hinson informed Ms. Bellamy that he needed a copy of the documents for his defense. Ms. Bellamy retrieved Mr. Hinson's file from the office where records were kept and brought it to the lobby to make the copies requested at a copy machine located in the lobby. There were two documents in the file that Mr. Hinson requested: the complaint and the arresting report. As Ms. Bellamy began to make a copy of the documents Mr. Hinson had requested, she found a copy of another document that had been mailed to Mr. Hinson that he had not requested. The document was a notice to Mr. Hinson that his Florida drivers' license had been suspended for refusing to take a breath test. Ms. Bellamy began quizzing Mr. Hinson about whether he had received the document. Although Mr. Hinson had in fact received the notice Ms. Bellamy asked him about, he told her he had not and requested a copy of it. Ms. Bellamy continued to ask Mr. Hinson about the notice. The conversation between Mr. Hinson and Ms. Bellamy became more agitated, although the evidence failed to prove why. Pam Miner, the Sheriff's secretary, was in an office next to the lobby. The door opening into the lobby was open and Ms. Miner overheard Ms. Bellamy and Mr. Hinson. Sheriff Peel was sitting in his office, which adjoined Ms. Miner's office. The door opening into Ms. Miner's office was also open and he could also hear the discussion. At some time after Ms. Bellamy began discussing the notice concerning Mr. Hinson's driver's license with him, Ms. Miner went to the door of Sheriff Peel's office and gave him a look which she described as intended to convey to Sheriff Peel that "you need to do something". After Ms. Miner looked into Sheriff Peel's office, he went out into the lobby. Sheriff Peel initially watched what was going on. At some point shortly after Sheriff Peel went into the lobby he asked Mr. Hinson some questions about Mr. Hinson's driver's license. Mr. Hinson informed Sheriff Peel that he had a Maryland driver's license. At some point during the discussion between Sheriff Peel and Mr. Hinson, Mr. Hinson indicated that he was seeking a copy of the documents in his file for his attorney. Sheriff Peel suggested that Mr. Hinson have his attorney get the copies. The discussion between Mr. Hinson and Sheriff Peel became more heated and argumentative. Eventually Sheriff Peel told Ms. Bellamy to "charge him $5.00" and started to leave. Mr. Hinson perceived this comment to mean that he was to be charged $5.00 per page or document. Prior to coming to the Sheriff's office to obtain copies of the documents in his file, Mr. Hinson had telephoned the Sheriff's office and had been told that there was a $2.00 copying charge. Two dollars is, in fact, what the Sheriff's office normally charges for copying documents. Mr. Hinson believed, therefore, that he would be charged $2.00 per document or a total of $4.00 for the documents he had requested. When Mr. Hinson heard the Sheriff indicate that he was to be charged $5.00, he became angry because he believed that Sheriff Peel was suggesting that he be charged $5.00 per copy or $5.00 per page. Such a charge was inconsistent with what he had been previously told about copying charges. Mr. Hinson incorrectly believed that Sheriff Peel was going to charge him the higher rate for copying because he had a Maryland drivers' license and was, therefore, apparently not from Washington County. Mr. Hinson confronted Sheriff Peel by stating that he had been told that the copying charge was only $2.00 a copy. Sheriff Peel, if he had meant to charge Mr. Hinson a total of $5.00 as suggested during the final hearing, did not clarify that he was only going to charge him a total of $5.00 instead of $5.00 per copy as Mr. Hinson apparently believed. The failure to clarify what he meant, and the fact that Sheriff Peel did not know how many documents were actually involved, support the conclusion that Sheriff Peel did not intend that Ms. Bellamy merely charge Mr. Hinson a total of $5.00. Of greater importance, these facts explain Mr. Hinson's confusion and anger. He reasonably believed he was going to be overcharged. Some time after Mr. Hinson confronted Sheriff Peel about the $5.00 charge, Sheriff Peel told Ms. Bellamy not to give Mr. Hinson anything. Mr. Hinson confronted Sheriff Peel, although he did not know at the time that he was the Sheriff, and asked him "what's the problem." Mr. Hinson also asked for the person in charge of "internal affairs", stating that he wanted to file a complaint against Sheriff Peel. Sheriff Peel informed Mr. Hinson that the Sheriff's Office did not have an "internal affairs" department, that he was the Sheriff, and that he would not take a complaint against himself. The Washington County Sheriff's Office has no written policy for handling complaints against personnel. The Washington County Sheriff's Office has an informal, unwritten policy for handling complaints. Sheriff Peel makes the final decision concerning complaints. At some time shortly after Sheriff Peel and Mr. Hinson began to argue, Captain Jenkins came to the door opening to the lobby from the room that he had been in. Initially, Captain Jenkins stood watching the discussion. Because of the smallness of the room, Captain Jenkins was relatively close to Mr. Hinson. After Sheriff Peel informed Mr. Hinson that there was no internal affairs department and that he would not take a complaint against himself, Captain Jenkins stated "I'm internal affairs this week. What's the problem?" or a statement to that effect. Although Captain Jenkins testified that he made the comment to try to diffuse the situation by injecting some humor into the situation, the weight of the evidence does not support this explanation. The weight of the evidence supports a conclusion that the comment was made in a snide and sarcastic manner. Mr. Hinson was being rude and confrontational. Sheriff Peel and Mr. Hinson were engaged in a somewhat heated argument. Mr. Hinson was obviously angry. To make such a statement to a person in this type situation evidenced a failure to exercise good judgement. The statement was intended to rebuke and insult Mr. Hinson. Mr. Hinson demanded that Captain Jenkins identify himself, which he did. Mr. Hinson told Captain Jenkins that he wanted to file a complaint against Sheriff Peel. Captain Jenkins told him that he would not take a complaint against the Sheriff. Captain Jenkins told Mr. Hinson that it would be better if he left the office. It was apparent to Mr. Hinson that nothing more could come of the confrontation with Sheriff Peel and Captain Jenkins. Sheriff Peel had ordered that nothing be given to Mr. Hinson. Sheriff Peel and Captain Jenkins had refused to take a complaint. It had been suggested that he leave. Mr. Hinson felt intimidated. Captain Jenkins is 6'1" and weighs approximately 225 pounds while Mr. Hinson is slightly built in comparison. There was nothing to be gained by continued argument and, therefore, Mr. Hinson left. Mr. Hinson was not intoxicated or taking medication at the time of his visit to the Sheriff's offices. Mr. Hinson's attitude and demeanor with Ms. Bellamy was defensive and confrontational. Mr. Hinson's displeasure over his arrest and his attitude were perceived as rudeness by Ms. Bellamy. Although Mr. Hinson did not yell or use profanity, as described by Ms. Bellamy, Mr. Hinson "had an attitude". These findings are based in large part upon the testimony of Ms. Bellamy, Pam Miner (the Sheriff's secretary) and David Corbin, the Director of Washington County Parks and Recreation. Mr. Corbin was in the lobby during the confrontation. Although Ms. Bellamy and Ms. Miner are employed by Sheriff Peel, and the fact that Ms. Bellamy was not totally candid in her testimony, the crucial elements of the testimony of the Respondents and these witnesses were consistent. It is difficult to categorize the degree of Mr. Hinson's rudeness. All of the witnesses agreed Mr. Hinson was rude and confrontational. His rudeness and attitude were not, however, so severe that Ms. Bellamy did not believe that she could handle Mr. Hinson. Nor did Ms. Bellamy ever feel threatened by Mr. Hinson. She did not request any assistance from Sheriff Peel or Captain Jenkins, both of whom were in adjoining offices. Nor was Mr. Hinson's attitude and treatment of Ms. Bellamy sufficiently troublesome to cause Captain Jenkins, who could hear the discussion between Ms. Bellamy and Mr. Hinson, to come out to assist Ms. Bellamy until after Sheriff Peel had intervened. Finally, Ms. Bellamy left the lobby during the confrontation to prepare to go to lunch, not something that would be expected of someone witnessing an overly serious confrontation. Sheriff Peel and Captain Jenkins did not yell at Mr. Hinson. Nor did they laugh at Mr. Hinson. Sheriff Peel did, however, become angry and argumentative with Mr. Hinson. The situation could have been ended by simply allowing Ms. Bellamy to provide the copies of the documents Mr. Hinson had requested, which had already been made. Captain Jenkins was sarcastic with Mr. Hinson and, to some degree, because of his size, intimidating to Mr. Hinson. Captain Jenkins' comment to Mr. Hinson, although sarcastic, was not threatening. Mr. Hinson, based upon 20-20 hindsight, was not a threat to anybody in the Sheriff's offices. This is not to say, however, that Mr. Hinson should have been taken lightly or that Mr. Hinson's conduct should have been totally accepted and tolerated by Sheriff Peel. Nor can it be concluded that Captain Jenkins should have totally ignored what was going on. Effort to Secure a Special Privilege, Benefit, or Exemption. The weight of the evidence failed to prove that the failure to have a written complaint procedure in place in the Washington County Sheriff's Office was intended by Sheriff Peel to secure a special privilege, benefit or exemption. Mr. Hinson, after telephoning the Florida Sheriff's Association, was informed that he could pick up a copy of the documents he wanted at the Sheriff's offices. Mr. Hinson also could have obtained a copy of the documents he wanted by having someone else, including his attorney, pick them up or by requesting a copy of the documents from the clerk of court's office. The weight of the evidence failed to prove that Sheriff Peel was attempting to intimidate Mr. Hinson into leaving the Sheriff's offices without obtaining a copy of the documents he had requested in order to secure a special privilege, benefit or exemption. Any funds collected for copying by the Sheriff's Office are funds of Washington County. Sheriff Peel has no control or direct use of those funds. The weight of the evidence failed to prove that Sheriff Peel was attempting to charge $5.00 for the copies in an effort to secure a special privilege, benefit or exemption. The weight of the evidence failed to prove that Captain Jenkins' actions were intended to intimidate Mr. Hinson into leaving the Sheriff's offices in order to secure a special privilege, benefit or exemption. At worst, the evidence proved that Sheriff Peel, arguably, could have exercised a little more patience and that Captain Jenkins made a smart remark at an inappropriate time. These actions, in light of Mr. Hinson's attitude and demeanor, do not support a conclusion that Sheriff Peel or Captain Jenkins were attempting to secure a special privilege, benefit or exemption for themselves or others. The actions of all those involved in this situation were emotional reactions to the situation and were not calculated to achieve any particular result.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report dismissing Complaint No. 91-42 and Complaint No. 91-43. DONE and ENTERED this 19th day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 19th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1-2. 2 3. 3 5. 4 6. 5 7. B. 1 9. 2 10. C. 1 23. Hereby accepted. Conclusion of law. D. 1 28-30. 2 29. 3 30. E. 1 13. 2 36. 3 14 and 23. 4 14-15. 5 14. 6 17 and hereby accepted. 7 See 37. 8 See 37-38 and 40. Ms. Bellamy's relationship to the Respondents has been considered. While it is true that Ms. Bellamy was not totally candid, the weight of the evidence failed to prove that Ms. Bellamy's testimony was materially flawed, especially in light of the testimony of other witnesses. 9-10 Not supported by the weight of the evidence. 11 See 41. The evidence failed to prove that "no reasonable person could have perceived Mr. Hinson as posing such a danger." Such a conclusion can only be made with 20-20 hindsight. 11a-b 38. 11c 19. 11c 31 and 38. 12 20-21 13 21 and see 26. 14 27. 15 28. 16 Not relevant. 17 22. 18 22-24. 19 25. 20 See 31. 21-22 32. The last sentence of proposed finding of fact 22 is not supported by the weight of the evidence. 23 33. 24 34. 25 35. See 35. See 37-40. The last three sentences are not supported by the weight of the evidence. See 25. The Respondents' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 See 11. 3 13-14. 4 15 and 17-19. 19, 21 and 37-38. The allegations concerning whether Mr. Hinson became "loud" are rejected as not supported by the weight of the evidence. See 27. The evidence failed to prove that Sheriff Peel "explained to Hinson that he had a small office" in an effort to explain why he did not have an internal affairs department. The Respondents' suggestion that Mr. Hinson was out of control is not supported by the weight of the evidence. See 31 and 33. The weight of the evidence failed to prove that Captain Jenkins suggested that Mr. Hinson go to the State Attorney's office if he wanted to file a complaint. See 22. The weight of the evidence failed to prove that Sheriff Peel was aware of how many pages were to be copied, that Mr. Hinson left after being told that the charge was $5.00 or that Mr. Hinson was not told to leave. 23 and hereby accepted. 10 16, 18 and 23. 11 45. 12 28-30. See 31. Hereby accepted. See 47. The last two sentences are not relevant. 16 See 24-25, 38-39 and 48. 17 42. 18 See 12. The last sentence is not supported by the weight of the evidence. 19-24 Although portions of these proposed findings of fact are true, the ultimate findings of fact suggested by these proposed facts are not supported by the weight of the evidence. For example, although it is true that Mr. Hinson admitted that he had a bad memory, the essential elements of his testimony were credible. 25 41-47. The last two sentences are not supported by the weight of the evidence. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 William E. Powers, Jr., Esquire Post Office Box 12186 Tallahassee, Florida 32317-2186 Bonnie J. Williams Executive Director Commission On Ethics The Capitol Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since November 29, 2001, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 2000056. Javeres Kendrick and Willie Kendrick are Respondent's brothers. Respondent has lived in the same residence as her brother Javeres her entire life. Since February of 1999, when they were placed on probation for committing the felony crime of lewd and lascivious assault on a child under 16 years of age, Javeres Kendrick and Willie Kendrick have been under the supervision of the Florida Department of Corrections (DOC). On or about November 27, 2000, Respondent completed and submitted to the Department of Corrections (DOC) a Correctional Officer/Correctional Probation Officer Supplemental Application. At the time, she did not have any training or experience as correctional or probation officer. Question 4 on this employment application asked: Do you have a business or personal relationship with anyone presently incarcerated or under the supervision of the Florida Department of Correction's system? If yes, give name, relationship, and place of incarceration/supervision. Respondent answered this question by checking "No." In doing so, she believed that she was providing accurate information to DOC. Although she was aware that her brothers were on probation, she did not understand them to be "incarcerated or under the supervision of the Florida Department of Correction's system," within the meaning of the question, because they were not in state prison. Furthermore, in her mind, she had a familial, not a "business or personal relationship" with her brothers.3 Respondent was ultimately employed by DOC as a correctional officer and assigned to Broward Correctional Institution (BCI). On September 18, 2003, a team of DOC correctional probation officers (Team), consisting of Raul Fernandez, Sara Bermudez, and Juan D'Elia, accompanied by local law enforcement officers, including David Torres of the Miami-Dade County Police Department, went to the residence of Javeres Kendrick at 4270 Northwest 197th Street, Miami, Florida, to conduct a "pre- planned sex offender compliance check." The purpose of the Team's visit was to ascertain whether Mr. Kendrick was in compliance with the terms and conditions of his probation. When the Team arrived at the residence, Mr. Kendrick was outside washing a vehicle. The Team members exited their vehicles and walked up to Mr. Kendrick. They identified themselves as correctional probation officers and told Mr. Kendrick that they were there to make sure that he was in compliance with the terms and conditions of his probation. To do so, they advised him, they needed to search his bedroom (which they were authorized to do by the court order placing Mr. Kendrick on probation). Mr. Kendrick responded that his bedroom was "a mess" and that he wanted "to go and clean [it] up" before the Team conducted its search. Despite being told that he "couldn't do that," Mr. Kendrick "bolted" away from the Team members and went "inside the house." Officers Fernandez and D'Elia followed Mr. Kendrick to the front door of the residence, where they were met by Respondent, who "intercepted" them and blocked their paths, thereby "prohibit[ing] [them] from entering [the residence] immediately." While standing in their way and interrupting their pursuit of Mr. Kendrick, Respondent, using profanity, yelled at Officers Fernandez and D'Elia in a "hostile and belligerent" manner, expressing her strong displeasure over their presence at the residence. She told them that they "had no right to be there," adding that "every time [they] show[ed] up there [they] always w[ound] up arresting her brother."4 Respondent was asked at least twice to "please move," which she finally did, albeit "in a very slow and deliberate manner." Officer Fernandez instructed Respondent to "take the children out of the residence and to wait outside until [the Team] conducted [its] search." With Respondent out of the way, Officer Fernandez and D'Elia entered the residence. Officer D'Elia spotted Mr. Kendrick "in the second bedroom on the left." Mr. Kendrick had his hand in a chest drawer. While Officer D'Elia "secured" Mr. Kendrick, Officer Fernandez searched the drawer and found "paraphernalia used for the pack[ag]ing of narcotics" and baggies containing what appeared to be cocaine and marijuana. After this discovery was made, Respondent came into the bedroom (contrary to the instructions she had been given) and asked "how much longer [the Team] had left." A conversation between Officer Fernandez and Respondent ensued, during which Officer Fernandez informed Respondent about "the narcotics that were in the drawer." Upon being so informed, Respondent, with the intent to deceive the Team, falsely claimed that the bedroom in which the "narcotics" had been found was not her bother Javeres' bedroom. Rather, she told Officer Fernandez and the other Team members, the bedroom had last been occupied by her uncle, who "had wound up going to jail." As the Team was leading him away from the residence, Mr. Kendrick asked Respondent to "retrieve" for him from "his room" a pair of pants, socks, and tennis shoes that he could wear in jail. Complying with this request, Respondent, followed by Officer Bermudez, went straight to the bedroom in which the "narcotics" had been found (which was Mr. Kendrick's bedroom, contrary to what Respondent had previously claimed) and "retrieve[d]" the items her brother had requested. During her dealings with the Team that day, Respondent revealed that she was a correctional officer at BCI. Upon returning to his office, after having "finished processing Mr. Kendrick and logging in the evidence" seized from Mr. Kendrick's bedroom, Officer Fernandez complained to his supervisor about Respondent's hostile and obstructive conduct during the Team's "compliance check" at Mr. Kendrick's residence earlier that day. Inasmuch as Respondent was a DOC employee, Officer Fernandez's supervisor referred the matter for an internal affairs investigation pursuant to DOC policy. Scott Thomas, a senior prison inspector with DOC, conducted the investigation. As part of his investigation, Inspector Thomas reviewed the contents of Respondent's DOC personnel file (including the employment application she had submitted on November 27, 2000) and obtained sworn affidavits from Officers Fernandez, Bermudez, and D'Elia. In addition, on November 12, 2003, he interviewed Respondent under oath. During the interview, among other things, Respondent repeated the falsehood that the bedroom in which the "narcotics" had been found during the September 18, 2003, "compliance check" was not her brother Javeres' bedroom. In addition, she falsely denied ever having used "profanity towards the [Team] members" conducting the "compliance check" and further falsely denied that that the Team members, during the September 18, 2003, "compliance check," ever told her to "wait outside the house." Respondent made these statements to Inspector Thomas knowing that they were not true. Inspector Thomas determined from his investigation that Respondent had "provided untruthful information" on her November 27, 2000, employment application and that she had engaged in "conduct unbecoming" a DOC employee during the September 18, 2003, "compliance check" at her residence. Based on the findings of Inspector Thomas' investigation, Respondent's employment with DOC was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of Allegation Two and Three and, based on these findings of guilt, revoke her certification. DONE AND ENTERED this 21st day of June, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 21st day of June, 2004.
The Issue Whether Respondent, a police officer, violated section 951.22(1), Florida Statutes, by conspiring to introduce, take, or attempt to take contraband into the Hamilton County Jail for an inmate of the jail, so as to result in a finding that Respondent has not maintained good moral character; and, if so, the appropriate penalty.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against law enforcement officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, and holds Law Enforcement Certification Number 313297. She was initially certified on January 8, 2014. On March 11, 2019, Respondent served responses to Petitioner’s First Set of Requests for Admission. Respondent acknowledged at the hearing that her responses were accurate. As discussed at the final hearing, and as reflected in the preliminary statement, Requests for Admissions 1 through 17 were accepted. Respondent has not previously been the subject of any disciplinary action. On February 28, 2017, Respondent was employed as an officer with the City of Jasper Police Department. On that date, Respondent was in a romantic relationship with Derrick Harris. On the morning of February 28, 2017, Mr. Harris turned himself in on an active warrant for what was apparently a misdemeanor offense in Duval County, and held in the Hamilton County Jail in Jasper, Florida. On February 28, 2017, from roughly 10:00 a.m. to roughly 4:35 p.m., Respondent and Mr. Harris spoke by telephone on nine separate occasions, for a total of roughly one hour and 50 minutes.2/ In addition, Respondent visited Mr. Harris in the jail visitation area, separated by glass and using a telephone handset, from 10:23 a.m. until 10:53 a.m. Thus, during the day, Respondent and Mr. Harris spoke for about two hours and 20 minutes. Much of the discussion between Respondent and Mr. Harris centered on how he would be able to come up with a $3,500 cash bond to get him released, and getting money put on the phone so he could make calls from the jail. During telephone call 713077714, which started at 2:17:32 p.m. on February 28, 2017, Respondent was upset that Mr. Harris’s mug shot had appeared on an unofficial website. She was also upset that a rumor was going around that she was responsible for Mr. Harris’s arrest. The tone of her voice ranged from angry to upset to tearful. During the call, Mr. Harris complained of being hungry. It was not the first time he made that complaint. He also stated, “I wish I had a cell phone -- if I had a cell phone I’d talk to you all night.” After a brief discussion, initiated by Mr. Harris, of how Respondent could slip a sack of Arby’s and a phone in her police vest, the idea was quickly shot down, with Mr. Harris stating that “I don’t want you to do nothing to jeopardize your job.” The entirety of the discussion lasted scarcely more than 90 seconds, and quickly reverted to a continuation of the discussion of how to raise bond money. Neither Arby’s nor a cell phone was brought up again. Respondent testified convincingly that “I didn’t -- I really didn’t plan on actually taking [anything in] -- I was just explaining over the phone because I was upset.” Her testimony is accepted. Idle chatter does not manifest intent to commit a crime, nor does it evince an agreement to do so. The evidence in this case establishes clearly, and it is found that Respondent had no actual intent to bring Arby’s or a cell phone, to Mr. Harris at the jail, that Respondent and Mr. Harris made no agreement to do so, and that she did not attempt to do so. Captain Bennett established that the Hamilton County Jail has: standing policy as per the Sheriff. When we come -- when an inmate comes into the jail facility, and they are indigent and don't have any money on them at the time, or they come in before commissary has arrived, he allows for a one-time initial issue, if there is someone that can bring underwear, socks, T-shirts, boxers, soap, deodorant, and basically hygiene items as for someone to, you know, be able to survive in the jail setting for -- you know, until they can get money there. Because everything else after that is usually purchased off of commissary, sir. Mr. Harris was new to the jail. He stated on several occasions during his conversations with Respondent that he did not have any “canteen.” Thus, despite the fact that “clothing” is listed as an item of contraband in section 951.22(1), and that Petitioner pled Respondent’s conspiracy to introduce clothing as an element of the second Amended Administrative Complaint, the evidence firmly establishes that Respondent’s delivery of underwear, t-shirts, socks, and hygiene items to the jail for the benefit of Mr. Harris was done through regular channels as duly authorized by the Sheriff or officer in charge. During the course of telephone call 71307815, which started at 3:15:45 p.m. on February 28, 2017, Mr. Harris can be clearly heard, on more than one occasion, asking jail staff what could be brought to him. The replies of jail staff were indistinct. However, Mr. Harris told Respondent that he could have socks, a t-shirt, deodorant, and the like. It was reasonable, based on Mr. Harris’s recitation, for Respondent to (correctly) understand that clothing, including socks and a t- shirt, were authorized by the correctional officer in charge. Mr. Harris stated that the correctional officer “didn’t say nothing about food.” He suggested that Respondent bring a couple of packs of ramen noodles and “see if they’ll let you give them to me.” Later during that call, Mr. Harris stated that Respondent would have “to ask them could I get the noodles.” It is clear that Mr. Harris wanted some ramen noodles, and that Respondent was willing to bring them. It is equally clear from the evidence as a whole that neither Respondent nor Mr. Harris intended to introduce the ramen noodles, or any other item, into the jail without permission from the correctional officer in charge. In order to avoid bringing anything improper into the jail, Respondent decided, “I’m going to message Captain Bennett over the Facebook because I was friend with him on Facebook. And I asked him what was allowed to be brought in.” At 4:07 p.m. on the afternoon of February 28, 2017, Respondent sent a direct message to Captain Bennett asking (verbatim): Would i be able to bring him some soap and deodorant and something to eat in there If they gonna pick him up for transport will i be able to see him before he go? Captain Bennett responded that “You can take him some soap and deodorant. I’m sure they will if the bond isn’t posted. Will have to see what’s going on about a visit.” The first and third sentences of the response are fairly straightforward, and directed towards Respondent’s first request (soap and deodorant), and her last request (a visit). The second sentence is ambivalent if not confusing, and could reasonably be understood to her second request, and to mean that jail staff would allow Respondent to bring Mr. Harris some food “if the bond isn’t posted.” In the context of the questions asked by Respondent, that is the most logical meaning, since soap and deodorant and a possible visit were already specifically addressed. Respondent gathered some items, including boxers, t-shirts, socks, body wash, deodorant, and the like, and placed them in a plastic bag with several packages of ramen noodles. There was no evidence that Respondent attempted to conceal the noodles. Respondent took the plastic bag to the jail. She drove her personal vehicle and was not in uniform. She tapped on the glass behind, which the correctional officer on-duty sat, and asked the correctional officer if the items could be taken to Mr. Harris. Respondent did not ask to take the bag to Mr. Harris herself. A correctional officer came from within the secured area, “and took out of the bag what was allowed in there.” There was no testimony as to which of the items, including the ramen noodles, made their way to Mr. Harris, and which, if any, were returned to Respondent. Nonetheless, Respondent was not trying to, and did not attempt to introduce contraband into the jail outside of regular channels and without the actual knowledge and authorization of the correctional officer in charge.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the second Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of June, 2019.
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
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 Respondent, Melvin Roberts, was born on July 14, 1967. He was certified by the Criminal Justice Standards and Training Commission on March 1, 1993, and was issued correctional certificate numbered 151525. Respondent has been employed as a certified correctional officer with the Florida Department of Corrections since January 29, 1993. On October 28, 1994, Officer Elise Dillard-Gonzalez of the Miami-Dade Police Department was working as part of an undercover prostitution sting at Southwest 8th Street and 69 Avenue. At approximately 11:10 p.m., Respondent, who was alone, pulled over to the curb and motioned to her to approach his vehicle. When she did, he requested a "fuck for $20." She signaled to the undercover officers across the street, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. On November 10, 1994, Officer Sonja Crespo of the City of Miami Police Department was working as part of an undercover prostitution sting at Biscayne Boulevard and Northeast 73rd Street in Miami. Respondent, who was alone, approached her and gestured at her by placing a finger on one hand through a circle made by the fingers on his other hand. When she went over to Respondent's vehicle, he offered her $20 for a "fuck." She signaled to other near-by police officers, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. Rather than going forward on the charges for the two arrests, the State Attorney's Office agreed to place Respondent in some type of pre-trial diversionary program. Respondent was suspended from his employment with the Florida Department of Corrections for 10 consecutive days beginning April 17, 1995, for failing to report his arrests to his employer within 3 days and for being arrested, conduct unbecoming a correctional officer. Other than the October and November 1994 arrests, Respondent has not been arrested. Other than the disciplinary action imposed in April 1995, Respondent has had no disciplinary action taken against him as a correctional officer for the State of Florida. The superintendent at the Dade Correctional Institution where Respondent is employed considers Respondent to be a good employee and would like to continue Respondent's employment.
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, finding mitigating factors to be present, and suspending Respondent's certification as a correctional officer for 20 days. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 7th day of May, 1999. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
