Findings Of Fact Respondent, Roxie E. Vause, was certified by Criminal Justice Standards and Training Commission on September, 1979 and was issued Certificate No. 99- 2566. On August 30, 1986, Roxie E. Vause was Chief Investigator with the Wakulla County Sheriff's Department (WCSD). At Approximately 11:00 a.m., on August 30, 1986, Eric Hindle, Chief of Paramedics and Ambulance Services in Wakulla County, was contacted by his dispatcher who reported Roxie Vause had called stating he had been in an automobile accident and requested Hindle's assistance. Hindle, who was a neighbor of Vause, had known Vause for many years and had had many years experience as an Emergency Medical Technician (EMT). As an EMT, he had dealt with many individuals who were injured and who were suffering from psychotic episodes. Hindle drove to the Vause home with two of his employees where he spoke with Vause's wife and learned that Vause was not at his house. While Hindle was talking with Vause's wife, Patrick Kennedy, a uniformed Wakulla County Deputy Sheriff, also arrived. Kennedy and Vause's wife left in Kennedy's patrol car to visit a house where Vause's wife thought he might be. Hindle decided to drive in the direction of Hindle's house searching for Vause. At approximately 12:00 noon, Hindle viewed Vause walking along the side of the unpaved road in the vicinity of Hindle's home. Vause had his hands and arms held across his stomach as though he were in pain. Hindle radioed that he had found Vause and their location. Hindle then drove his car along side Vause, stopped, and abruptly approached Vause, who reacted as though he were frightened and drew his pistol, pointing it at Hindle. Although they were neighbors and had worked together professionally for years, it was Hindle's opinion that Vause did not recognize him at that time and was having a psychotic episode. Hindle was of the opinion that Vause had been drinking alcohol and did not know where he was or what he was doing. Hindle quieted Vause down and Vause responded to Hindle, putting his pistol away. Hindle was talking with Vause, continuing to pacify him and attempting to place him in Hindle's care for transportation to the hospital when Kennedy arrived in his patrol car with Vause's wife. Kennedy approached Vause from the rear and placed his hand on Vause's shoulder. Kennedy was dressed in uniform and had worked with Vause before. When he was touched, Vause turned towards Kennedy and when he saw his uniform, he began to shout incoherently and redrew his pistol. Kennedy grabbed Vause's hands, holding the gun down between them, and Hindle, Kennedy, and another EMT wrestled Vause to the ground where Kennedy handcuffed him. Hindle was of the opinion that Vause did not know who Kennedy was or what was happening. After he was handcuffed, Kennedy talked with Vause; and as he talked with Vause, it seemed that Vause recognized Kennedy and calmed down again. When he was calm, Kennedy took the handcuffs off and continued to discuss what was going on with Vause. When Kennedy discussed sending Vause to the hospital, Vause went wild again, striking Kennedy in the face with his fist. Kennedy again subdued Vause and rehandcuffed him. Kennedy observed that Vause appeared to go wild; and when in that state, Vause did not appear to recognize Kennedy or others whom Vause should have known. According to Kennedy, Vause did not act normal. Kennedy placed Vause in a vehicle and Vause was transported to the emergency room at Tallahassee Memorial Regional Medical Center. Margorie Landers Smith was a Registered Nurse in the emergency room when Vause was brought in on the afternoon of August 30, 1986. She had known Vause when she had worked for the ambulance service in Wakulla County. She took his medical history and charted his vital signs upon admission. Vause appeared to Smith to have been drinking and was in a highly excited state. Dr. Cohen (phonetic), Vause's doctor, arrived and examined Vause and ordered various tests. Upon receiving the results, Dr. Cohen advised Vause to voluntarily admit himself for psychiatric observation. Vause angrily refused and Dr. Cohen told Vause that he, Cohen, would admit Vause involuntarily. Cohen and Smith were both in an examining room in the hospital's emergency room during this confrontation, and Vause refused to let either of them leave the room. Smith talked with Vause and convinced Vause to let Dr. Cohen leave. Vause admitted to Smith that he was drinking too much and had family problems. Vause eventually allowed Smith to leave the examining room. Dr. Cohen called hospital security and a psychiatrist obtained an involuntary admission order for Vause. Eventually, the Tallahassee Police Department was called to remove Vause to the psychiatric center because the hospital security lacked jurisdiction. Vause had rummaged through the medical supplies in the room and found two very large cardiac syringes with barrels approximately four inches long and heavy gauge needles three to four inches long. When Smith returned to the examining room, Vause threatened her with these syringes, holding them up in her face. Smith continued to try and calm Vause, but he was very upset. Vause kept saying he was going to leave and was not going to the psychiatric center. In response to the hospital's call, two female officers from the Tallahassee Police Department (TPD) arrived on the scene and attempted to talk Vause into letting Smith go and going to the psychiatric center. They succeeded in getting Smith free, but he used the syringes to threaten the officers and Smith, who remained and continued to try and work with Vause. The officers requested backup and Officer Peavey, a K-9 officer, arrived at the scene. After attempting to reason with Vause unsuccessfully, Peavy broke the syringes with a night stick and, together with the TPD officers, hospital security officers, orderlies and nurses, subdued Vause, who was handcuffed and transported to the psychiatric center. On the evening of August 30, 1989, Officer Peavy was called back to the hospital psychiatric center where he arrived to find that Vause had broken free of his four-point restraints. He, again, quieted Vause down and the nurses gave Vause additional medication to calm him down. Peavy observed that Vause's behavior was erratic and Vause would shift rapidly from rational and non- aggressive behavior to irrational and aggressive behavior. On September 12, 1986, officers of the WCSD were called to the residence of Ronnie Kilgore by Kilgore's wife. Vause was one of the officers who responded to the call. Donald Crum, formerly a deputy with WCSD and then with the Florida Department of Law Enforcement, also responded to this call and saw Vause, whom Crum had formerly known well. Crum was shocked at Vause's appearance and struck up a conversation with him about Vause's problems. Vause had been drinking and acted suicidal. Crum was joined by David Harvey, Sheriff of Wakulla County, and together they left Kilgore's house and returned to the Sheriff's office where they continued to discuss Vause's problems and tried to talk Vause into surrendering his weapons. Vause was very agitated, stated he was afraid of people who were out to get him, and refused to surrender his weapons. Several times during his conversation with Crum and Harvey, Vause pulled his weapon and waived it around before reholstering it. Both Crum and Harvey felt that Vause needed to be disarmed for his own good, but that to do so in the Sheriff's office at that time would be courting disaster. They let Vause leave and put a plan into effect to disarm and subdue Vause away from town in order that uninvolved persons would not get hurt. The Leon County Sheriff's Department (LCSD) Special Weapons and Tactics Team (SWAT) was alerted and deployed around the areas in which it was felt Vause could be arrested that evening because Harvey had concluded it was necessary to arrest Vause for Vause's own safety. On the evening of September 12, 1986, a call was received from Ronnie Kilgore, who reported that Vause was at Kilgore's house; however, when the deputies arrived at Kilgore's house, Vause had left. Vause's vehicle was found wrecked in a water filled drainage ditch, and Vause was arrested at a nearby convenience store and returned to the scene of the automobile wreck. When Vause was disarmed, the officers could not account for all of the weapons which he was known to carry and they felt these weapons were in Vause's truck. When they asked Vause about this, Vause advised them that if they entered his truck, they were liable to get hurt because there was a "bomb" in the truck. Joseph Doyle, the bomb expert for the LCSD SWAT and a friend of Vause, was called to the scene. He did not know that it was Vause's vehicle, but he was told that there was possibly an explosive device in the truck and weapons which the WCSD wished to secure. Doyle entered the truck, which was two-thirds full of water, and found several firearms and a one pound can of black powder with a M-120 hand grenade fuse screwed into the top of it. The pin was in place in the fuse and the device was wet. Doyle had worked with Vause on many occasions and had instructed Vause on explosive devices. In Doyle's opinion, the device which he removed from Vause's truck was not as dangerous a device as Vause was capable of making, even with essentially the same materials. Doyle felt the device he had found was probably designed as a signalling device to alert one of the approach of others. Subsequently, Vause was charged with several felonies; however, he plead guilty only to several misdemeanors, receiving two years probation. One of the conditions of this probation was that Vause not drink alcoholic beverages. Vause admits violating this condition of his probation on November 29, 1988 but asserts that he has not violated the condition since that time. For violation of that condition, Vause was sentenced to eight months in the county jail which he has finished serving. Vause admits that he is an alcoholic. He attends meetings of Alcoholics Anonymous and has completed a drug rehabilitation program. Vause has no independent recollection of the events of August 30 and September 12, 1986. Vause feels that his service as a patrol officer contributed to his personal problems and does not desire to return to those duties. He felt that his experience could be put to use as a corrections officer or bailiff. All of the sworn officers who knew Vause praised his service and professionalism prior to the events of August and September 1986. Many of them indicated a willingness to serve with Vause if he had received treatment, was well, and had demonstrated his rehabilitation. Vause experienced a psychotic episode during the period August 30, 1986 and September 12, 1986, during which he was irrational, suffered from violent mood shifts, and exhibited aggressive and suicidal behavior. He was hospitalized during a portion of this period for assessment of his mental competence. No evidence was presented by either party concerning the findings of Vause's admission to determine Vause's competency. However, based upon the testimony of those who observed the Respondent during this period, the Respondent Roxie E. Vause is found to have been psychotic during the period from August 30 to September 12, 1986 to such an extent that he could not form the requisite intent to commit a criminal act.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission reactivate the Respondent's certification upon the following conditions: The Respondent complete all required training and education; The Respondent be placed upon a two-year probation, during which time he shall comply with the following conditions: The Respondent advise any employer or potential employer that he is a recovering alcoholic; The Respondent regularly attend meetings of Alcoholics Anonymous for 24 months and present evidence of attendance to his supervisors upon request; The Respondent, if medically possible, take medications for 24 months which cause violent intestinal upset if alcohol is ingested; The Respondent attend any additional counseling, treatment, or instruction which the Commission or his employer may require for 24 months to include his appearance as a speaker or participant; and The Respondent submit all performance evaluations by his employer on his performance to the Commission during his probation. The Respondent's certificate may be revoked or this probation may be extended by the Commission for violation of the terms of this probation. DONE AND ORDERED this 18th day of December, 1989, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of May, 1989. COPIES FURNISHED: Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Harold S. Richmond, Esq. P.O. Box 695 Quincy, FL 32351 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Florida Department of Law Enforcement Box 1489 Tallahassee, FL 32302 =================================================================
The Issue In this case, the Petitioner seeks to impose discipline against the Respondent's certificate to be employed as a correctional officer based upon the allegation that the Respondent has committed acts which evidence a failure to maintain the qualifications incumbent upon a correctional officer working in Florida. In particular, it is alleged that the Respondent committed acts which demonstrated a lack of good moral character.
Findings Of Fact Facts Deemed Admitted The Respondent was certified as a corrections officer by the Petitioner on or about August 16, 1985 and was issued Corrections Certificate No. 28-85- 502-02. The Respondent was employed as a sworn corrections officer with the Alachua County Department of Corrections from June 17, 1985 to August 8, 1991. The Respondent, on or about April 20, 1990, was found guilty by a jury for the crime of resisting arrest without violence, a misdemeanor. The court withheld adjudication and sentenced the Respondent to six months of probation. The Respondent, on or about July 8, 1991, entered a plea of nolo contendere to the criminal charges of resisting arrest without violence and battery, both misdemeanors. The court sentenced the Respondent to one year of probation and withheld adjudication. On or about August 6, 1991, the Respondent became involved in a dispute with members of his family at his residence. The Respondent had consumed one or more alcoholic beverages immediately prior to and/or during the above-referenced family dispute. The dispute turned into a verbal and physical disturbance involving the Respondent and members of his family. The police were called to the Respondent's residence due to the above- referenced disturbance. After the police arrived with regard to the above-referenced disturbance, the Respondent barricaded himself inside his residence by locking the doors. After barricading himself inside his residence, the Respondent armed himself with a knife. The Respondent threatened to kill the police officers at the scene of the above-referenced disturbance if the officers attempted to apprehend him. Other Facts The offense described in paragraph 3 to these facts is related to the allegations contained in paragraph 2.(a) to the Administrative Complaint. The offense described in paragraph 4 to these facts is related to the allegations contained in paragraph 2.(b) to the Administrative Complaint, with the exception that paragraph 2.(b) makes no mention that a battery was committed. The offense described in paragraph 4 to these facts was considered in the Circuit Court of Union County, Florida, Case No. 90-29-CF. In addition to the service of one year of probation, the Respondent was ordered to successfully complete Anger Management as instructed by the Respondent's probation officer. On August 2, 1989, at approximately 9:30 p.m., in Alachua, Florida, Officer Lisa Brown, in pursuing her duties as a sworn officer, stopped the Respondent for a traffic violation. The Respondent was stopped because he had run two stop signs in Alachua. The stop signs were run at Northeast 8th Avenue crossing over State Road 235 and at Northwest 8th Avenue at Main Street. Officer Brown is now Officer Lisa Brown Haefner. At times relevant, Officer Haefner was serving as a police officer with the City of Alachua. Officer Haefner made the traffic-violation stop on Northwest 8th Avenue, off of Main Street, in Alachua. When the traffic-violation stop was made, Officer Haefner was assisted by Sergeant Cindy Dennison of the City of Alachua. Sergeant Dennison and Officer Haefner were driving separate patrol units on that night. Both officers observed the Respondent run the stop signs. Officer Haefner and Sergeant Dennison did not know Respondent when the traffic stop was made. After the stop, Officer Haefner asked the Respondent to exit his vehicle. The Respondent exited the vehicle. At that time, Officer Haefner asked the Respondent for identification. The Respondent replied that he "had none". Officer Haefner asked the Respondent for his name. The Respondent stated that he "didn't have a name". When the Respondent was contacted about the traffic violations, Officer Haefner asked for his driver's license, and the Respondent told Officer Haefner that he did not have a driver's license. The Respondent was acting irrational and irritated in the presence of Sergeant Dennison and Officer Haefner. Officer Haefner detected an odor about Respondent's person which she believed to be cannabis. Officer Haefner determined to arrest the Respondent for resisting or obstructing arrest without violence based upon the Respondent's failure to give information concerning his identity and the belief that she had cause to arrest Respondent. After informing the Respondent that he was being arrested for resisting or obstructing arrest without violence, Officer Haefner and Sergeant Dennison attempted to place handcuffs on the Respondent. This was a normal procedure. The Respondent resisted the placement of the handcuffs by twisting and stiffening his body and leaving his arms in front of him, which obstructed the officers' ability to secure the Respondent's arms behind him, as they desired. Under the circumstances, Officer Haefner sought the assistance of Officer Clovis Watson, Jr. (later Sergeant Watson) and Officer VanHorn. The other officers who were summoned for assistance were employed by the City of Alachua Police Department. The Respondent was eventually handcuffed, placed in Officer Watson's patrol car, and taken to the police station. When at the police station, he continued to be irrational and irritated. At one point in the encounter between Officer Haefner, Sergeant Dennison, and the Respondent, the Respondent offered to obtain identification from the back seat of his vehicle. The officers declined that request in that the Respondent was acting irrational and irritated; and based upon a fear for her personal safety, Officer Haefner would not allow the Respondent to access his vehicle. Respondent's offer to obtain identification came about at the point in time at which Officer Haefner and Sergeant Dennison attempted to handcuff the Respondent. The nature of the Respondent's irrationality and irritability was manifested by his being "real vocal, not wanting to cooperate, agitated as far as being stopped" and asking the officers "why are you harassing me?". The Respondent manifested this attitude notwithstanding that Officer Haefner had told him that he was being stopped for a traffic violation. The Respondent also manifested his irritability by having an agitated appearance. Before the Respondent was arrested for resisting or obstructing arrest without violence, he had been told several times not to return to his vehicle; however, he continued to walk toward his vehicle. It is at that point that Officer Haefner and Sergeant Dennison physically grabbed the Respondent and tried to restrain and handcuff him. The Respondent's actions prohibited Officer Haefner and Sergeant Dennison from performing their law-enforcement duties in making the traffic- violation stop. The Respondent continued to struggle when the officers were attempting to place the handcuffs on him after Officer Watson arrived at the scene by swaying back and forth. In the course of that struggle, Sergeant Dennison fell to the ground and the Respondent and Officer Watson fell on top of her. As a consequence, Sergeant Dennison sustained a concussion. The Respondent held his hands close to his body as a means to restrict the ability of the officers to handcuff him. The Respondent shook back and forth and this caused the officers and the Respondent to fall, injuring Sergeant Dennison. While the officers were attempting to handcuff the Respondent, he did not strike out at the officers. The Respondent resisted, in part, because he did not wish to be taken to the jail where he worked. On May 5, 1990, the Respondent, together with his brother and a friend, went to Union County, Florida, to a nightclub. When they arrived they were confronted by a number of persons who were already at the club. A fight ensued and the Respondent's brother was injured. The Respondent then took his brother to Ramadan Hospital to have his brother treated for injuries sustained in the fight at the club. Ramadan Hospital was located in Lake Butler, Union County, Florida. Union County Sheriff Jerry Whitehead received a call on his beeper at around 1:00 to 1:30 a.m. on the morning in question. He called the Union County Jail and was told about the fight at the local nightclub. He was also told that all of the deputy sheriffs had been dispatched to the nightclub. In turn, Sheriff Whitehead got dressed and started toward Lake Butler. Ramadan Hospital is located between his home and the Union County Jail. About a mile from the hospital, Sheriff Whitehead received a call from the sheriff's office dispatcher indicating that there was a disturbance at the hospital. Sheriff Whitehead responded to that call. When Sheriff Whitehead entered the emergency room at the hospital, the Respondent, his brother and the friend were in the waiting area of the hospital. The Respondent was standing in the hallway at that time, cursing and saying that he had just contacted his supervisor, taken to mean supervisor at the Alachua Correctional Facility, and that the Respondent was "fixing to have some people come over and they were going to get the situation straight". Sheriff Whitehead identified himself to the Respondent and asked the Respondent what the problem was. The Respondent indicated that he had been involved in an incident at the local nightclub and that there had been a fight and his brother had been injured. The Respondent told Sheriff Whitehead that he was going to "take this thing into his own hands". The Respondent was also indicating "things" that he wanted to have done concerning the incident. Respondent was cursing and using foul language. Sheriff Whitehead told the Respondent that he had to calm down or leave the premises. Sheriff Whitehead repeated this remark a number of times. After a time Sheriff Whitehead went to a telephone in the hospital and called the sheriff's office dispatcher and asked that a deputy sheriff be sent. During the course of these circumstances, the Respondent was belligerent and had the smell of alcohol about his person. The Respondent was being very belligerent in telling the nurses something to the effect that he was going to "tear that place up if they didn't get this done." This related to the Respondent's concern that a doctor was not available to attend to his brother at the hospital. The disturbance which the Respondent was causing was primarily directed to the hospital staff. The Respondent continued his outbursts for several minutes. In the course of this event, the Respondent identified himself as a law enforcement officer. Sheriff Whitehead told the Respondent that he needed to calm down and to let the Union County Sheriff's Department take care of the situation. Finally, Sheriff Whitehead believed that he had lost control over the Respondent's conduct and told the Respondent that he was going to place the Respondent under arrest. The Respondent replied that "he did not need to be arrested, wasn't going to be arrested." Sheriff Whitehead then placed his arm on the Respondent's arm and the Respondent snatched his arm away from Sheriff Whitehead. At that point Sheriff Whitehead took the Respondent through a set of doors to exit the hospital emergency room. They struggled out onto a patio area and onto the asphalt parking lot and then onto a grassy area where Sheriff Whitehead took the Respondent down and held him until a deputy sheriff arrived to assist. Sheriff Whitehead told the Respondent that he was being arrested for breach of the peace, an offense which Sheriff Whitehead believed he had reasonable cause to arrest the Respondent for. After the Respondent had been subdued and handcuffs placed on him, the Respondent became cooperative and acted remorseful, again explaining to Sheriff Whitehead that he was a correctional officer and that he was afraid he was going to lose his job because of the incident. The Respondent was then taken by a deputy sheriff to be transported to the Union County jail. When Sheriff Whitehead was trying to talk to the Respondent, the Respondent would swing his arms and on several occasions made cursing remarks toward the nurses, which Sheriff Whitehead believed was because doctors were not available to attend the Respondent's brother at that time. On August 6, 1991, Officers Glen Hammond, Donald Rice and Price responded to an alleged domestic disturbance call at 305 N.E. Fifth Street in Alachua, Florida. Those officers were working for the City of Alachua Police Department when they made the response. The alleged domestic disturbance involved the Respondent, his mother, sister and brother. When the officers arrived at the scene the other family members told the officers that the Respondent had been involved in a physical altercation with them and had battered them. The Respondent's mother told Officer Hammond that the Respondent had been smoking crack cocaine prior to the arrival of the officers. The family members told the officers that the Respondent was located in a wooded area near the residence. The officers went to find the Respondent so they could talk to him concerning the complaint by his family. Officer Wallace located the Respondent and brought him back to the residence. While standing in front of the residence, the Respondent was arguing with his mother and using profanity. In addition, he yelled at Officer Hammond a few times to the effect that the Respondent wasn't going to be taken into custody. At that juncture there was no intention by the officers to arrest the Respondent. At this time Officer Hammond did not observe anything about the Respondent's demeanor to suggest that the Respondent had consumed alcoholic beverages. After a short period, the Respondent left the area adjacent to the residence and returned to the woods. The officers again went to find the Respondent so that they could discuss the complaint. While the officers were trying to locate the Respondent for the second time someone started yelling that the Respondent had returned to the residence and was inside the residence. The officers then returned to the residence. When Officer Hammond walked up to the front of the residence to an area adjacent to a porch on the front of the residence, the Respondent opened the door and stepped out holding a knife which appeared to be a steak knife. The Respondent told Officer Hammond that Officer Hammond was not going to arrest him and that if Officer Hammond tried to come on the porch, the Respondent would kill Officer Hammond. The Respondent also mentioned the possibility that he would do harm to himself. While standing on the porch, the Respondent was not acting in a rational manner. After the Respondent threatened to kill Officer Hammond, the officer backed away from the residence and called for assistance from other law enforcement officers. Officer Hammond did this being fearful for his safety. A second brother of the Respondent arrived at the residence when the Respondent went in the house from the front porch. The second brother went inside to try and talk to the Respondent to defuse the situation. The second brother managed to have the Respondent come out of the house, at which point, the Respondent was charged with disorderly intoxication. At about the time the Respondent was arrested, Officer Hammond was close enough to the Respondent to notice that the Respondent had an odor of alcohol about the Respondent's person. When Office Wallace found the Respondent in the woods on the first occasion, the Respondent did not resist the officer in any manner and agreed to go back to the residence with the officer. When the Respondent returned to the residence on the first occasion, he stated that he would kill somebody first before he would go to jail. It is at that point that the Respondent broke from the scene and ran into the woods. While on the porch, the Respondent stated that he would kill any officer or take his own life, and that the Respondent was not going to go to jail. When the Respondent was first approached in the woods, Officer Wallace did not have grounds to arrest the Respondent. When the Respondent came back from the woods the first time, Officer Hammond was trying to interview the Respondent concerning the circumstances between the Respondent and his family that had caused the officers to be summoned. When the Respondent returned to the woods for the second time, the officers did not have cause to arrest the Respondent. When the Respondent told the officers that he was not going to be arrested or go to jail, upon the conversation that the officers held with the Respondent after he returned from the woods on the first occasion, the Respondent had not been told that he was being arrested. When the Respondent went back in the house from the front porch, he locked the doors to the residence and still had possession of the steak knife. The residence in question was reported to the officers as being the Respondent's mother's residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Certificate No. 28-85-402-02 be revoked. DONE AND ENTERED this 31st day of October, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-5306 The following discussion is given concerning the proposed findings of fact by Petitioner. Petitioner's Facts: Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Paragraphs 5 through 30 are subordinate to facts found. Paragraphs 31 and 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes a conclusion of law. Paragraph 36 is not necessary to the resolution of the dispute. Paragraphs 37 through the first sentence in Paragraph 42 are subordinate to facts found. The second sentence in Paragraph 42 is not necessary to the resolution of the dispute. Paragraphs 43 through 50 are subordinate to facts found. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302-1489 Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, FL 32605 A. Leon Lowry, II, Director Department of Law Enforcement Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302-1489
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Arvis Bethel (Bethel), has been employed by the County as a correctional officer since October 23, 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Bethel.3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Bethel had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Bethel and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. You have unlawfully committed an assault and battery on Louie F. Clayton. You have unlawfully and knowingly purchased stolen property. Following receipt of the Commission's letter of denial, Bethel filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Bethel denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Bethel on October 7, 1985, at which time he divulged that he had purchased stolen property a few times, so long ago as to not exactly remember when; had used marijuana, although he could not recall the number of times, 12- 13 years before the interview; and had tried cocaine twice, 3-4 years before the interview. Also conceded by Bethel was his conviction in 1965 of assault and battery. Notwithstanding the County's conclusion, based on its investigation and analysis of Bethel's background, that Bethel possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, the proof demonstrates that at some time prior to 1966, the exact date not being known due to the passage of time, Bethel did receive a few auto parts which, although he did not know at the time he received them, were apparently stolen property. At the time, Bethel and his friends raced cars and in the process of maintaining their cars traded parts. Such was the circumstance under which Bethel, who was then not more that 20 years of age, having been born October 1, 1944, received parts which later proved to have been stolen. On June 2, 1965, Bethel, then 20 years of age, was convicted in the Criminal Court of Record, Dade County, Florida, of assault and battery, a misdemeanor, and served four months in the Dade County Jail. That conviction, which occurred almost 25 years ago, arose as a consequence of a fight Bethel had with one Louie F. Clayton. On September 26, 1986, Bethel entered the United States Army where he served honorably for over six years. By the time he was discharged on February 9, 1973, he had been promoted to the rank of staff sergeant, had served two tours of duty in Vietnam, and had been awarded, among other indicia of distinguished service, the Army Commendation Medal, the Bronze Star Medal, and Good Conduct Medal. Admittedly, while in Vietnam, Bethel used marijuana, however, since that time, a period of over 16 years, he has not used it. Following his discharge from the service in 1973, Bethel was employed by Florida Portland Cement Company, and was continuously employed by such company, except for the period of July 1976 through January 1977, until it went out of business in 1984. During the period of July 1976 through January 1977, Bethel, along with other employees of Portland Cement, suffered a brief layoff. During that period, Bethel was employed as a corrections officer by the Department of Corrections in Florida City, albeit without certification. The only recent blemish on Bethel's record is his use of cocaine on two occasions in 1981 or 1982, during the course of his divorce. Such conduct is atypical of Bethel's character, and his remorse for having used such substance is credited. In light of the circumstances, such usage is not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Bethel has been employed by the County as a corrections officer, a position of trust and confidence, for approximately three and one- half years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Bethel is now, and has been for some time, a respected member of the community. He is a member of the Veterans of Foreign Wars and the Masons. He has attended Miami Dade Community College where he has amassed 78 semester credits. During the last semester he attended, the winter term which ended March 1, 1986, Bethel carried 18 semester hours of class work, and received a 3.33 grade average out of a possible 4.0. Overall, Bethel has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Arvis Bethel, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. WILLIAM J. KENDRICK 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 28th day of June 1989.
The Issue Whether Respondent unlawfully discriminated against Petitioner by terminating his employment in violation of the Florida Civil Rights Act of 1992, as amended, as alleged in the Petition for Relief.
Findings Of Fact Petitioner, Michael Jeffries, was employed as a trainee, then as a trooper by the Florida Highway Patrol (FHP) from August 5, 1991, to January 30, 2009. During that time, Petitioner received a written reprimand in 1985 for "failure to perform job duties" and was suspended for 40 days in 1997 because his drivers' license was about to be suspended. In 2004, Petitioner had symptoms of fatigue, low sex drive, and difficulty sleeping. Petitioner read an advertisement, as he remembers, in a muscle and fitness magazine, for PowerMedica, a facility that listed itself as a provider of hormone replacement therapy (HRT) that could alleviate fatigue and low sex drive. Petitioner visited the offices of PowerMedica which appeared to be a typical medical office in a multi-story office building. Petitioner has learned in retrospect that, as it appeared, in April 2004, PowerMedica held a valid State of Florida license as a medical facility, a pharmacy. He asked the receptionist for information about PowerMedica, she gave him a brochure, and he left. Petitioner next consulted his primary care physician, Carlos G. Levy, M.D. Dr. Levy was unable to recall if he saw Petitioner for specific complaints or for his annual physical. Petitioner's blood was drawn in Dr. Levy's office and sent to LabCorp for testing on April 28, 2004. Dr. Levy reviewed the results of the test with Petitioner and diagnosed him as having hypogonadism, a condition manifested by a low testosterone level of 201, or any level below 300, according to Dr. Levy, although the test results form indicated that 241 to 827 is the normal range. By either standard, Petitioner was, according to Dr. Levy, hypogonatic and his condition should have been treated to avoid more serious health problems. Dr. Levy is board certified in osteopathic family medicine. As a part of his regular practice, he treats patients with low testosterone, usually beginning with topical preparations. His patients have monthly blood tests and, if the topical testosterone is not being absorbed adequately, he uses testosterone injections. Despite having diagnosed his condition, Dr. Levy did not treat Petitioner. Rather than seeking treatment from Dr. Levy, Petitioner made a second visit to the PowerMedica office. This time Petitioner filled out a confidential medical questionnaire. On the form, he indicated that he had no decrease in sexual potency and no sleep disturbances, or any other medical conditions. He testified that he was embarrassed to put low testosterone, or his symptoms on the form that would be seen by the receptionist and others in the office, but that he did tell a gentleman in a white lab coat in a private room at PowerMedica about his condition. He also gave that gentleman a copy of his blood tests results and was advised that his records would be reviewed by a doctor. He did not believe that the gentleman or anyone else that he personally met at PowerMedica was a doctor. Approximately a week later, Petitioner received a telephone call from someone he believed to be a doctor or someone who was calling for a doctor at PowerMedica. That person said his records had been reviewed, and he could get prescriptions from, and could get them filled at, PowerMedica. On his third visit to PowerMedica, Petitioner received four prescriptions, dated June 11, 2004, all signed by a Dr. Al Almarashi, whom he had never met. The prescriptions were filled at PowerMedica. Petitioner received two anabolic steroids: Stanozolol and Nandrolone Decanoate; a human chorionic gonadotropin, Novarel, that is used to stimulate testosterone and sperm production; and Clomiphene, an anti-estrogen drug. Petitioner testified that Dr. Levy was aware that he was seeking HRT for low testosterone from another facility. Dr. Levy denied that he was ever advised that Petitioner had purchased and used Stanozolol and Nandrolone. He did not recall being told that Petitioner had purchased and used Novarel or Clomiphene. According to his medical notes, Dr. Levy did not see Petitioner again after April 2004 until September 8, 2005. Petitioner became aware that State and federal agencies were investigating PowerMedica and stopped buying their controlled substances, but he did not notify his employer of his connection to the pharmacy nor did he offer to assist with the investigation. The Broward County Sheriff's Department, in cooperation with the Food and Drug Agency (FDA), determined that Dr. Almarashi was not a Florida-licensed physician and could not lawfully write prescriptions in Florida, and that PowerMedica was selling controlled substances to people without appropriate examinations and documentation of any related medical conditions. As a result, the State suspended its license and the FDA closed PowerMedica. The Sheriff's Department obtained the PowerMedica customers' list and gave law enforcement agencies the names of any of their law enforcement officers whose names were on the list. Because his name was on the list, Petitioner was investigated by Respondent. He was notified in a letter dated January 14, 2009, that his employment was terminated for the following reasons: Section 893.13(6)(a) Florida Statutes, Possession of a controlled substance without a valid prescription, 3rd Degree Felony; Florida Highway Patrol Policy Manual, Chapter 3.03.06(A)7. Code of Conduct states: "Members will maintain a level of moral conduct in their personal and business affairs which is in keeping with the highest standards of the law enforcement profession;" Florida Highway Patrol Policy Manual, Chapter 3.03.06(a)51. Code of conduct states: "Members will not possess or use cannabis or any controlled substances except when prescribed by law and Division directives"; Florida Highway Patrol Policy chapter 5.11.05, Substance Abuse. These violations constitute the following disciplinary offenses: Possession, Sale, Transfer or Use of Drugs Off the Job, first offense; Violation of Statutory Authority, rules, Regulations or Policies, Fourth Offense; Conduct Unbecoming a Public Employee, first offense. Based on his own testimony, Petitioner tried to tell FHP investigators that he had a legitimate medical condition and they refused to believe him. In fact, their report disputes Dr. Levy's diagnosis by asserting that the blood test showed "low testosterone serum but not low free testosterone." The report also faults Petitioner for not being suspicious and for not holding himself to a higher standard as a law enforcement officer who would be aware of the stigma attached to the purchase and use of controlled substances, not as alleged by Petitioner that there was a "stigma" of actually having the condition. The investigators concluded Petitioner knew he was purchasing controlled substances illegally, in part, because (1) they concluded that he really did not have any related medical condition, (2) he was not treated by his primary care doctor who diagnosed what he claimed was a condition, (3) he had no valid doctor-patient relationship with PowerMedica, and (4) he did not come forward with information about his connection to PowerMedica when he became aware of a law enforcement investigation. Taken as a whole, the evidence supports a finding that Respondent terminated Petitioner’s employment because its investigators decided, correctly or incorrectly, that Petitioner knew or should have known that he unlawfully purchased and consumed Schedule III controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 8th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2009. COPIES FURNISHED: Sandra Coulter, Esquire Florida Highway Patrol Neil Kirkman Building 2900 Apalachee Parkway, A-432 Tallahassee, Florida 32399 Cathleen Scott, Esquire Cathleen Scott, P.A. Jupiter Gardens 250 South Central Boulevard, Suite 104-A Jupiter, Florida 33458 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner's application for licensure as a building inspector should be granted or denied.
Findings Of Fact Petitioner submitted an application for licensure as a building inspector on August 6, 2003. The application was reviewed by Respondent and subsequently denied on the basis that it contained “materials which questions [sic] the good moral character of Petitioner,” and that Petitioner’s application "failed to provide complete supporting documentation relating to all previous disciplinary actions which could also impact a determination concerning [Petitioner's] moral character." No notification that Petitioner’s application lacked supporting documentation was sent by the Department to Petitioner. Petitioner’s application lists prior convictions for traffic-related offenses, such as careless driving, driving with a suspended license, and DUI. Petitioner has never been convicted of a crime involving dishonesty, false statement, fraud, or theft. Petitioner has never been convicted of a felony. Petitioner was under the influence of alcohol at the time that all of the traffic-related offenses were committed. Petitioner is now a recovering alcoholic who has been actively involved with Alcoholics Anonymous (“AA”) for over three years on a voluntary basis. His sobriety date is May 25, 2001. The sobriety date is important because it marks the date when an alcoholic makes and implements a commitment to a new way of life. AA operates on the principle generally accepted by the medical community that alcoholism is a disease, and not a moral issue. AA operates on the principle that although there is no cure for alcoholism, there is a daily reprieve. AA is a 12-step program providing guidelines to living. AA works only if the alcoholic follows the twelve steps to the best of his or her ability. A person who is not willing to change his or her life cannot be helped by AA. AA is an ongoing lifetime process of personal improvement, the pinnacle of which is service to others. Petitioner is a totally different person now as compared to the way he used to be. Petitioner admits that his alcohol-related impairment was the primary cause of the episodes of misconduct prior to his commitments to a life of sobriety and to the principles of the AA program. Petitioner’s last criminal conviction was in 1998. Since becoming sober, Petitioner purchased his own home and recently married. Petitioner is an officer in his AA home group, with responsibilities that include overseeing the group’s activities, setting up meetings, chairing meetings, providing coffee, and paying rent for the meeting site with monies that the group has entrusted to him. Petitioner regularly chairs his home group meetings, and has spoken on alcohol-related issues to several other community groups, including the Salvation Army and the Comprehensive Alcohol Rehabilitation Program. Petitioner has become a person of integrity who cares about others, reaching out to new AA attendees as a mentor. Petitioner has been regularly employed since he stopped drinking. Joe Iagrossi has known Petitioner for a little more than two years. Petitioner is employed by Iagrossi’s company, Construction Inspections of the Palm Beaches. Iagrossi considers Petitioner to be a reliable, honest, and truthful employee, trusts Petitioner’s judgment, and has confidence in his work. Iagrossi believes that Petitioner has the ability to distinguish right from wrong, as well as the character to observe the difference. There have never been any conduct issues with Petitioner, and he possesses a good reputation within the company. Iagrossi is of the opinion that Petitioner can practice building inspection with reasonable skill and safety to the general public. Richard Sussan is Petitioner’s AA sponsor and has known Petitioner for two years. Sussan considers Petitioner a person of integrity, who cares about others, is reliable and honest, and is very committed to AA. Petitioner is a member of, and is actively involved with the activities of, Christ Fellowship Church. Petitioner is a regular volunteer in the church’s Special Needs Ministry. The Special Needs Ministry is a program which allows families of children with special needs to attend regular church services by providing volunteers to watch the special needs children during that time. For the past two years Petitioner has volunteered every other Sunday to watch a special needs child so that the child's parents can attend church services. Petitioner is highly regarded by church officials and church members who know him, and in that group he enjoys a reputation of being very reliable, honest, and a person of integrity and good morals. Petitioner worked for the architectural firm of Ames Bennett & Associates, P.A. for fifteen years. Petitioner’s duties included field inspections for residential and commercial projects, for code and contract compliance, from geotechnical and foundation through trim work, ADA, and fire safety oversight. Petitioner also managed the office, paid bills, interviewed job applicants, and showed new employees inspection techniques. Petitioner passed the Southern Building Code Congress International certification examination for Building Inspector on November 20, 2001. Petitioner passed the International Code Council certification examination for Building Inspector on September 18, 2003. Chapter 11 of the Florida Building Code governs enforcement of the Florida Americans with Disabilities and Accessibility Implementation Act. The Act defines “disability” as “physical or mental impairment that substantially limits one or more major life activities, and includes alcoholism."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting Petitioner's application for licensure as a building inspector. DONE AND ENTERED this 9th day of August, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2004.
