The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on September 12, 2011.
Findings Of Fact The events at issue concern Embarq's termination of Mr. Garcia's employment on September 13, 2010. At the time of his termination, Mr. Garcia was a 45-year-old male. His national origin is Puerto Rico, and he is of Hispanic descent. Further, Mr. Garcia suffered from migraine headaches, which were the result of a work-related injury. He had been an employee of Embarq, and its predecessor companies, since August 10, 1998. Before his termination, Mr. Garcia worked as a technician servicing business and residential customers. His base of operations was at the customer service center located in Winter Park, Florida, referred to by Embarq as the Winter Park "Railroad Avenue" Center. As a service technician, Mr. Garcia would receive his daily customer calls through a computer system that sent out work orders. Mr. Garcia would drive the Embarq vehicle to the customer's house or business to complete the service. The Embarq vehicle was equipped with a global positioning satellite (GPS) monitor tracking the vehicle's location, including the time the vehicle left and returned to the Embarq office. Finally, Mr. Garcia's work time was recorded by Embarq's computer system, named SAP, in which Mr. Garcia would enter a code indicating the tasks accomplished in customer service, the time when the task began and the time when he completed the task. As a service technician, Mr. Garcia was required to truthfully and accurately enter his time worked into the SAP system. Ms. Smith was Embarq's area operations manager for the Central Florida area, including the Winter Park center where Mr. Garcia worked. In the summer of 2010, Ms. Smith noted that some of the Embarq vehicles were returned to the customer service centers before the end of the work day at 4:30 p.m. Consequently, she asked the customer service center supervisors to examine all employee time records and determine whether or not a problem existed. Ms. Smith learned from Charles Clendenny (Mr. Clendenny), the acting manager for the Winter Park customer service center, that the examination showed some questionable activities. Based on Mr. Clendenny's report, Ms. Smith asked Ms. Trinder to conduct an independent review of all the employees at the Winter Park “Railroad Avenue” center. Ms. Trinder was Embarq's human relations business-partner, and part of her duties involved conducting employee investigations. Ms. Trinder examined the GPS documentation, the SAP time sheets, and the computer systems work force management assignments for all of the Winter Park “Railroad Avenue” employees. Her examination revealed questionable activities by four employees: Mr. Garcia, Scott Somner, James Shaunessy, and William Allison. The record showed that Mr. Somner is an African American and was approximately 48 years old at the time; that Mr. Shaunessy is a Caucasian, age in his sixties; and that Mr. Allison is an African American, age in his twenties. Of the four employees, only two were terminated, Mr. Garcia and Mr. Somner. Ms. Trinder and Ms. Smith credibly testified that during the interviews, they had learned that Mr. Shaunessy and Mr. Allison had received approval from their prior supervisor, Joe Venezia, to leave work early on the specific dates. Further, the data from the three computer systems confirmed Mr. Shaunessy's and Mr. Allison's explanations for leaving work early for the specific dates. Both Mr. Shaunessy and Mr. Allison were given training by Ms. Smith and Ms. Trinder concerning Embarq's work attendance polices. As to Mr. Garcia, Ms. Trinder's examination showed that Mr. Garcia had falsified his time records, and that he had unscheduled work absences. At the conclusion of the interview, Ms. Trinder typed a statement of Mr. Garcia's interview. The statement indicates that Mr. Garcia stated he did not know why he had entered that he had worked on two unscheduled work days, July 2, 2010, and July 14, 2010, and that he had mistakenly entered 4.75 hours as worked on an August 3, 2010, a date he actually took unscheduled time off. The result of these time entries was that Mr. Garcia was paid for work days on which he did not work, and that he avoided discipline for missing work. The Embarq employee handbook shows that employees are subject to discipline, if the employee misses work on a scheduled work day. The record shows that Mr. Garcia had previously been trained by his supervisor about the problem of missing work without providing the required 24-hour notice. On September 10, 2010, Ms. Smith sent a request to Ms. Susan Sarna, vice president/general manager, recommending that Mr. Garcia be terminated. Similarly, Ms. Trinder sent a recommendation to her supervisor recommending Mr. Garcia's termination. On September 13, 2010, Mr. Garcia was terminated as an Embarq employee. Mr. Garcia clearly testified that even though he had migraines that he had not requested any type of accommodation from his supervisors or from Embarq. Mr. Garcia did not bring forward any evidence, either direct or indirect, showing that Embarq's termination of his employment was the result of an unlawful employment practice. Mr. Garcia did not bring forward any evidence showing that Embarq's offered explanation that it terminated Mr. Garcia for attendance and time falsification was pretextual.
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 finding that Petitioner failed to show that Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act, and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2012.
Findings Of Fact The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year. RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of August, 1994. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 (Copies furnished, continued) Karen B. Wilde Executive Director The Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Petitioner presented its case based upon the testimony of witnesses and the introduction of certain tangible evidence. The initial witness by the Petitioner was Herb Baker, a Beverage Agent for the Florida Division of Beverage, so employed since July 1, 1966. This witness was the chief investigating officer for the Petitioner in developing the case upon which administrative charges in this action are founded. The witness testified about a prelude to the investigation, which was a request made by the licensee, Andrew James, that the Winter Garden Police Department institute an investigation of alleged narcotic sales within the licensed premises at 850 E. Bay Street, Winter Garden, Florida. According to the witness, this investigation was commenced under the direction of Chief Donald Ficke, Winter Garden Police Department, and the effort was coordinated with a Sergeant Lowell (Stoney) Williams, also of the Winter Garden Police Department, together with the witness Baker. In pursuit of the investigation, Officer Baker contacted Eugene Fogle, who was then a police officer with the City of Sanford, Florida. (Officer Fogle later indicated in the course of the testimony that he had worked with Agent Baker on many other occasions involving narcotic investigations.) Subsequent to the time of the investigation, Officer Fogle became a Beverage Agent and has continually been serving in that capacity to the time of the hearing. It was indicated that the application to become a Beverage Agent filed by now Agent Fogle was filed during the course of the investigation of the license premises herein. Furthermore, Agent Baker was involved in the background check which was made on the question of the qualifications of Agent Fogle. The investigation which led to the charges under this administrative complaint commenced on or around July 19, 1974, and culminated in a certain search warrant which was served October 4, 1974, for the premises which is 850 E. Bay Street, Winter Garden, Florida. Another person involved in the investigation was Nathaniel Brown, a confidential informant. The witness Baker indicated that Nathaniel Brown had been referred to him by one Irving Riffle. Nathaniel Brown was a black man who frequented the bar in question. Irving Riffle had at one time been a police officer and was, during the period of July, 1974, through October 4, 1974, the owner of a grocery store in the City of Winter Garden, Florida. Additionally, Irving Riffle, according to Officer Baker, assisted the Division of Beverage on various raids as a police officer, and also on three or four occasions had assisted Agent Baker by providing him with confidential informants. In this instance, Mr. Riffle was asked by the witness if he knew of anyone who could relate some information regarding narcotics, and Nathaniel Brown was provided. Nathaniel Brown provided information on the names of most of the alleged sellers in the bar, and also was the basis for approximately 14 or 15 capias which were issued on alleged activities originating from the bar or vicinity. When asked if he, Baker, thought that Nathaniel Brown was a reliable confidential informant, the witness indicated that he had no reason to believe that Brown wasn't reliable, although he had only used him on the one occasion. On September 20, 1974, Baker met with Fogle at a school in the community for purposes of coordinating narcotics purchases to be made at Brown's Bar. Also in attendance at the meeting was Nathaniel Brown. During the course of the meeting Agent Fogle was instructed by the witness, Baker, to make purchases from behind the bar. The reason for this statement, according to the witness, Baker, was that Nathaniel Brown had told him that Andrew James was the biggest pusher in the area. The witness also indicated that he had heard that Andrew James was involved in narcotic sales, but he, the witness, did not appear convinced by that hearsay. Agent Fogle and Nathaniel Brown left together from the school around 7:30 or 8:00 p.m. to go to the bar. Agent Baker followed and watched Fogle and Nathaniel Brown exit their automobile in the area of the bar and then disappear from sight. Then Agent Baker went to get Sergeant Stoney Williams at the Winter Garden Police Department. Later in the evening of September 20, 1974, Baker testified that he met with Fogle and Fogle produced two manila envelopes which were turned over to Sergeant Williams of the Winter Garden Police Department. The witness looked in these envelopes to see what was in them and indicated a green leafy substance was in the envelopes. Again on September 28, 1974, the witness indicated meeting Fogle, Sergeant Williams, a woman named Barbara Williams, and Nathaniel Brown at around 10:30 a.m. at the same schoolhouse. The witness stated that Fogle was instructed to make further purchases from behind the bar, because he felt that he wanted two people involved in any purchase from Andrew James to satisfy himself that Andrew James was, in fact, selling. To that extent the witness indicated that he saw Fogle, Barbara Williams, and Nathaniel Brown go to the bar and into a crowd which was milling around the front of the bar. He and Sergeant Williams left the area because it was daytime and they did not want to be seen in their police vehicle. After leaving the area, they drove around and later rendezvoused with Fogle at which time another envelope was turned over to Agent Baker, which had allegedly been purchased from Andrew James. This evidence of September 28, 1974, was turned over to Sergeant Williams of the Winter Garden Police Department in the same way as evidence of September 20, 1974. Prior to the purchases of September 20, 1974, which were, according to the witness, made from Andrew James and one Willie C. Brown, also known as Slim Brown, and the alleged purchase from Andrew James of September 28, 1974, all other purchases by Agent Fogle had been made under the general instruction to make purchases within the bar, as opposed to specifically purchased from people behind the bar. The witness indicated that narcotics purchases were made with unmarked money and that Agent Fogle and Nathaniel Brown had been paid money for their services, and that no fingerprints were taken on any of the items of evidence which contained the alleged marijuana. Additionally, no other form or technique was used in the purchases, such as transmitters on the operatives, or a shakedown of Agent Fogle before going into the bar. As indicated by the witness, he did not shake down Agent Fogle because Fogle was a police officer. The witness stated that Petitioner's Exhibit #1 was the item which contained the substance, which was indicated as being purchased from Andrew James, and that Petitioner's Exhibit #3 was an item which contained the alleged marijuana purchased from Slim Brown, both of the purchases on September 20, 1974. The witness further stated that Petitioner's Exhibit #6 was the alleged purchase of marijuana from Andrew James, which took place on September 28, 1974. Agent Baker commented that there was a search warrant served on October 4, 1974, at the premises of the licensee's bar at 850 East Bay Street, Winter Garden, Florida. In the course of the search, he was involved in the search of the stockroom of the bar, but found nothing in the stockroom in the way of narcotics. He was not sure what was found behind the bar because he only searched in the stockroom. He did indicate, however, that narcotics were found in the main part of the bar where the customers sit. One other involvement with the premises in question was a routine investigation or inspection of the premises at a time prior to September 20, 1974, but within that same general time sequence, in which he found no Beverage Law violations on the premises. It was developed in the course of the testimony that the witness denied any statements being made to the licensee, to the effect that the licensee had had a clean record for some five years, and that it was time he, the licensee, had a few marks placed against his record. A great deal of time was spent developing the relationship between the witness, Agent Baker, and Irving Riffle. The witness, Baker, commented about this by saying that his only business contacts with Riffle were in terms of buying meat from Riffle's store, and those matters already indicated above in the development of Agent Baker's testimony. Other items of note are that the witness indicated that he had spoken with Riffle on the evening that the search warrant was served, October 4, 1974, over drinks at the Quality Inn, which is located in Ocoee, Florida. Moreover, at a time when the man, Irving Riffle had been served with a subpoena in this cause, the witness, Baker, spoke with him on the phone and had lunch with him, at which time he indicated that he instructed Riffle that there was nothing to be concerned about and he should only come and tell the truth about the matter. On a second occasion the witness, Baker, met with Riffle's attorney at the attorney's office after a second subpoena had been sent to Mr. Riffle. On this occasion it was stated that nothing further occurred in the way of any commentary about possible involvement by Mr. Riffle in these matters at issue. Finally, the witness, Baker, was not certain about whether the evidential items, to wit: the packets containing the alleged marijuana had been opened before being presented to him or were sealed, nor whether or not Agent Fogle saw him examine the contents of those items. The next witness who testified for the Petitioner was Eugene Fogle, who is now with the Division of Beverage as a Beverage Officer I. He testified that he had worked with the Sanford Police Department of Sanford, Florida, for approximately three and one-half years before coming to work with the Division of Beverage. He said that he was contacted by Agent Baker and had some meetings about making drug buys in Brown's Bar. It was indicated through the witness that he had worked with Agent Baker on several other occasions before this instance. His undercover work in the bar was about once every weekend, but not necessarily every weekend during the time of the investigation. He stated that he made 30 to 35 purchases in the area of the bar and parking lot, and that the licensee, Andrew James, was always present in the bar or in the stockroom when the purchases were being made. On September 20, 1974, the witness testified that he met with Agent Baker at the school in Winter Garden, Florida, and was instructed by Agent Baker to go to the bar and make purchases from persons behind the bar. He said he got to the bar between 7:00 and 7:30 and a purchase was made from Andrew James around 8:00. The witness testified that he went to the bar in the presence of Nathaniel Brown, who went in the bar with him. He ordered beer at the bar, went back to the table, and back to the bar again and asked if the licensee had any "smokes." The licensee went into the stockroom, came out with a manila envelope, for which he was given $5.00 after exchange of conversation, in which the witness asked, "how much" and was told "five dollars." The witness testified that he stayed in the bar for less than an hour and then went to the Pizza Hut and made another purchase, and ultimately went to the Police Department in Winter Garden, Florida, where the evidence was turned over. On the same evening, September 20, 1974, and in the same bar, a second purchase was made from one Willie C. Brown, also known as "Slim." This purchase was made by approaching the bar and asking for "smokes" for which Willie C. Brown reached in his pocket and gave a second manila package. This package was also ultimately taken to the Winter Garden Police Department. After making the purchases, the first purchase from Andrew James was placed in his left jacket pocket and the second purchase from Willie C. Brown was placed in his right jacket pocket. The witness was shown Petitioner's Exhibit #1 which he indicated had his initials and was the item in which the substance he purchased from Andrew James was contained as relates to September 20, 1974. He was also shown Petitioner's Exhibit #3 which he said had his initials on it, and he indicated this was the purchase he had made from Willie C. Brown on September 20, 1974. Agent Fogle testified that he went home about 9:30 p.m. that evening, September 20, 1974, after leaving the Police Department. He again met Agent Baker at the school on September 28, 1974, also in attendance was Nathaniel Brown and Barbara Williams. This rendezvous was in the morning of September 28, 1974. The witness indicated that he, Barbara Williams, and Nathaniel Brown went to the bar and that in the presence of Barbara Williams he made another purchase from Andrew James by asking for "smokes," much in the same way as before, and that the man Andrew James went back to the stockroom and got the substance known as marijuana, brought it back, and gave it to the witness in return for $5.00 in the same fashion as September 20, 1974. This package was placed in his left pocket and he stayed another 15 or 20 minutes, left and went to the Pizza Hut to make another purchase. Nathaniel Brown was not at the table with Barbara Williams while he was making the purchase from Andrew James on September 28, 1974, although the witness did not know where Nathaniel Brown went within the bar. Likewise Nathaniel Brown went with him to the bar on September 20, 1974, but went to the juke box and was not sitting with the witness when he purchased marijuana from Andrew James and Slim Brown on the date of September 20, 1974. The purchase from Andrew James on September 28, 1974, according to the witness, was turned over to Agent Baker and Officer Stoney Williams at a location a short distance from the school. The witness also identified Petitioner's Exhibit #6 as being the item purchased from Andrew James on September 28, 1974. The witness Fogle indicated that "smokes" to him is a word which he refers to when he wants to purchase marijuana in these cases, but he did not recall anyone else in the bar using the word "smokes" to connote marijuana. He did not know the Respondent, Andrew James, before conducting the investigation or making the alleged purchases of September 20, 1974, and September 28, 1974, but he indicated that Andrew James was the only small, older man in the bar during these occasions. He also stated that he was not acquainted with Willie C. Brown before making the purchase of September 20, 1974, or before commencing the investigation which surrounded the events of September, 1974. He made the acquaintance of Nathaniel Brown during the course of the investigation. His acquaintanceship with Barbara Williams came about by a certain investigation while working with the Sanford Police Department in the course of investigating a domestic matter between Barbara Williams and her husband. He later went out with Barbara Williams socially, to which Barbara Williams in her testimony indicated the social activity was to the extent of being intimate. The witness indicated that the money was not marked in any of the transactions, and that he never examined any of the three items of evidence pertaining to the sales of September 20, 1974, and the sale of September 28, 1974. In other words, he bought these items believing them to be marijuana, but never examined the contents to determine what they were. This refers to Petitioner's Exhibits 1, 3 and 6. The witness indicated that his application to become a Beverage Agent was made during the pendency of the investigation involving Brown's Bar. His only knowledge of any connection of Irving Riffle with the case, was to the extent of one occasion in which Agent Baker and the witness were given a sandwich at Riffle's store. In an effort to test the witness' knowledge of sales which took place in and around September 20, 1974, and September 28, 1974, certain questions were developed about sales made by Willie C. Brown to the witness on September 13, 1974, in the bar. The witness seemed to vacillate a great deal about whether or not such a sale took place on September 13, 1974, but ended up by saying that he did not recall that sale from Willie C. Brown in spite of a transcript of record in another proceeding which indicated to the contrary. The Petitioner next called Barbara Williams, who works for Marriott Inn Flight Services, Sanford, Florida. She indicated in the time period around September, 1974, that she worked as an undercover agent with Officer Fogle, and on one occasion went to the bar in the morning hours. This was the only morning that she ever went to Brown's Bar, and for that reason she remembers the occasion, plus she remembers the 28th of September as being significant because her birthday is on March 28th. She testified that she met with Agent Fogle, Sergeant Williams, and Agent Baker on September 28, 1974, and went to the bar around 11:30 a.m. and sat at a table. Fogle went to the bar, brought two beers back to the table and talked to the people at the table for about an hour or so. She indicated that she saw Fogle approach the bar again after buying the two beers and saw Andrew James give a manila envelope to Fogle, saw money pass hands between those two parties, and Fogle brought the package to the table and showed it to her and placed it in his pocket. They then stayed 20 or 30 minutes and went to a dirt road where they met Agent Baker. When shown Petitioner's Exhibit #6, she indicated her initials were on the item and that this was the item which she saw purchased. She remembers being in Brown's Bar on occasions other than September 28, 1974, and remembers it to have been three times that she was in the bar, but doesn't recall what instance September 28, 1974, was in the chronology of the three times. The witness testified that she did not recall whether or not Agent Fogle looked into the bag that was purchased from Andrew James on September 28, 1974, but that she remembered that he usually looked to see what the contents were, and usually did this observation at the place of the purchase. The witness indicated that after meeting Agent Fogle while he was working with the Sanford Police Department, she went to work in the capacity of an undercover agent some one or two months after that meeting. She also stated that she and Agent Fogle had been intimate, but it was not clear in her mind whether this was during the course of the investigation of Brown's Bar or some other time either before or after. The witness stated to her knowledge no other purchases were made from behind the bar on other occasions other than the one time of September 28, 1974. The Petitioner presented the witness Susan Brownless, who is a forensic chemist for the Florida Department of Criminal Law Enforcement at the Sanford Crime Laboratory. She is a supervisor of the chemist section. It was stipulated between the parties that she was qualified as an expert in the field of forensic chemistry and that she has the ability to identify the substance known as cannabis sativa, also known as marijuana. The witness was shown Petitioner's Exhibit #7, which is an envelope in which Petitioner's Exhibit #3 was placed after the laboratory had made their analysis of Petitioner's Exhibit #3. Petitioner's Exhibit #3 contained a substance which weighed 4.6 grams and was chemically and microscopically analyzed. The chemical analysis was the rapid modified dequenois levine test which proved to be positive in that the substance which weighed 4.6 grams was found to be cannabis sativa. Microscopic analysis of Petitioner's Exhibit #3 also proved that the substance was cannabis sativa. Then the witness was shown Petitioner's Exhibit #1, which had been placed in Petitioner's Exhibit #8 after completing an examination in the laboratory. Petitioner's Exhibit #1 was a green envelope which contained 4.7 grams by weight of a substance which was chemically analyzed using the rapid modified dequenois levine test, and this test proved positively that the substance was cannabis sativa. This item of evidence was also shown to have been cannabis sativa by microscopic examination. This microscopic examination referred to in connection with Petitioner's Exhibit #3 and Petitioner's Exhibit #1 is a type of botanical identification according to the witness. The witness indicated the average nickel bag, which is the amount of purchase associated with Petitioner's Exhibits #1 and #3, weighs 8 to 10 grams, and that the two bags which were Petitioner's Exhibits #1 and #3 were low weight bags and this is unusual. The extraneous material found in Petitioner's Exhibit #1 was 30 percent and Petitioner's Exhibit #3 was 45 percent, and the witness knows of no averages of extraneous material in this type purchasing. The state next called Terrence Oestriech, who is a forensic chemist, and works for the Florida Department of Criminal Law Enforcement, Sanford Crime Laboratory, Sanford, Florida. Among the witnesses' educational qualifications is the achievement of a doctorate in his field. It was again stipulated between the parties that the witness, Terrence Oestriech, is a forensic chemist, who has the ability to identify the substance known as cannabis sativa, also known as marijuana. The witness was shown Petitioner's Exhibit #2, which is a clear package in which certain materials were placed when examination was completed by the witness of the Petitioner's Exhibit 6, which was a white envelope of which the contents were examined by the witness. The witness found 3 grams by weight of which 60 percent of the matter was extraneous material. The witness performed the rapid modified dequenois levine test, which proved positive that the substance in Petitioner's Exhibit #6 was cannabis sativa. He also indicated certain microscopic examination of Petitioner's Exhibit #6, which again proved positive, in that the substance was cannabis sativa. This examination was the botanical identification referred to in the other chemist's examination of Petitioner's Exhibits #1 and #3. The witness, Oestriech, felt that the contents and gram weight of the Petitioner's Exhibit #6 was typical of a nickel bag purchase, meaning a $5.00 purchase; however, the witness felt that, the extraneous material was high, but not extraordinarily so. Rather than call one of the prospective witnesses by the Petitioner, that witness being Sergeant Lowell (Stoney) Williams of the Winter Garden Police Department, the parties stipulated to the correctness of the chain of custody items of evidence which were handled by Sergeant Williams of the Winter Garden Police Department, and which were left in his care and custody during the course of the investigation. It was stipulated by the parties that the items of evidence had not been disturbed while in the care and custody of Sergeant Williams. Those items of evidence which had been in his care and custody were Petitioner's Exhibits #1, #3 and #6, as relate to the issues in the case. The Petitioner presented exhibits numbered in sequence #1 through #8 for introduction into the record, and those exhibits were admitted over the objection of the Respondents' attorney. A complete statement of the objection as offered will be developed in later sections entitled EVIDENCE and CONCLUSIONS OF LAW. In the section entitled EVIDENCE, a complete list of the exhibits with a description of them will be given, together with a complete list and description of all Respondents' exhibits. The Respondents' case was founded on the testimony of Andrew James and Ocilla James, in addition to other live testimony, together with written affidavits and letters, and an oral stipulation. The Respondents produced Nathaniel Brown as a witness. Mr. Brown indicated that he was a customer at Brown's Bar and frequently went there, mostly everyday at present and in the past around September of 1974. The witness testified that he did not know Eugene Fogle in terms of working with him in any narcotics investigation, but he did know him by sight. The witness stated that he knew Herb Baker by sight because someone had pointed out Herb Baker to him the night the bar was raided. Moreover, the witness indicated that he had never been with Eugene Fogle to Brown's Bar. Nathaniel Brown testified that he had never seen Andrew James sell any marijuana, and as a matter of fact, at times, for instance on weekends, you could smell marijuana in the bar and he has seen Andrew James run the people out of the place, meaning the bar. The witness further stated that it wasn't very possible that he had been in the bar on Saturday morning, September 28, 1974, with Agent Fogle and Barbara Williams, because he was in the hospital in that time period and was in the hospital a couple of weeks. The witness denied telling Agent Baker that Andrew James was the biggest drug pusher in west Orange County. The witness said that he knew Irving Riffle, but that Irving Riffle had not introduced the witness to Herb Baker. He further stated that he knew Barbara Williams, but had not worked with her. Nathaniel Brown stated that to his knowledge no one had broken into his home and put threats against his life on the mirror, but later on in that same examination agreed that someone had broken into his house and stolen his stereo, but stated that that wasn't last year. It was not clear whether he had changed his testimony on the question of anything being written on the mirror. On further cross examination, the witness said, "I don't know, not on this case" in response to a question as to whether there had been threats on his life about this case, speaking of facts surrounding Andrew James. The next witness presented by the Respondents, who spoke to the issue of the matters in the bar, was one Willie C. Brown, a/k/a Slim Brown. Willie C. Brown works part-time at Brown's Bar at present, and was working there part-time in September, 1974. The witness said that in September, 1974, he worked there at night from 7:00 to 11:00 on Tuesday through Thursday, and 7:00 to 12:00 on Friday and Saturday. The witness stated that he had not sold any marijuana to anyone in September, 1974; however, he apparently plead no contest or nolo contendre to charges arising out of an arrest for an offense on which the arrest was node on October 4, 1974. This plea was made with advice from counsel. In that connection the witness testified that he had been approached by Irving Riffle, who told him that Agent Baker said that the only way he could get out of his situation, meaning the witness, Willie C. Brown, was to take the witness stand and say Andrew James was selling marijuana. Willie C. Brown stated that he told Irving Riffle that he wasn't going to do that because Andrew James was not selling. The witness testified that he had known Agent Baker for four or five years at the time of giving his testimony, and that he knew him from around Irving Riffle's store. The witness said the only reason he knew Eugene Fogle was he saw him in court at the end of Andrew James' trial. The witness indicated that Andrew James made an effort to keep marijuana out of his bar back in September, 1974. Willie C. Brown could offer no statement on the matters concerning September 28, 1974, because he stated he was not working on Saturday morning, September 28, 1974. The Respondents also presented Chief Donald George Ficke, who is the Chief of Police of the Winter Garden Police Department, Winter Garden, Florida. He had been the Chief of Police since December 9, 1973. In July, 1974, or thereabouts, he indicated that Andrew James came to his office and discussed problems, such as firearms and narcotics in the bar, and requested that something be done about it. Chief Ficke indicated that he had contacted the Division of Beverage about conducting an investigation, and that he was assisted in this regard. There was one investigation in early June, 1974. This investigation involved agents other than Agent Baker. The principal person involved in that investigation was one Jack Wallace of the Division of Beverage with a second person who was a sheriff's deputy from Seminole County, and another black Beverage Agent from Miami, Florida. To Chief Ficke's knowledge, this investigation did not result in any arrests, and results of the first investigation were not told to Andrew James. The second, or subsequent, investigation in Brown's Bar was the one in which Agent Baker and Sergeant Stoney Williams of the Winter Garden. Police Department were involved. This second investigation culminated in a search of the bar on October 4, 1974, under the authority of a search warrant, and this warrant far was executed under the witness' supervision. Before conducting the search, it was stated that certain security precautions were taken to insure that there was no leak of information about the search, and the witness felt relatively sure that there was not a leak. A search was commenced about 9:00 p.m. on October 4, 1974, and to the witness' knowledge, no marijuana or other narcotics was found in the cubbyhole in the back of the bar, which is also referred to as the stockroom. Moreover, to this witness' knowledge nothing was found in the entire bar, although he didn't see the film or report of the raid. It was stated that there is a policy to keep notes and report of investigations, but there are no reports or notes available on this investigation due to some internal situation. After the raid of October 4, 1974, had been completed, the witness testified that he and Agent Baker, Agent Fogle, and Sergeant Williams went to the Quality Inn in Ocoee, Florida to have a drink and they were there joined by Irving Riffle. Some other testimony was offered to the effect that although Riffle indicated he was on the way home from bowling and saw and recognized one of the cars in the parking lot, this witness checked to determine the accuracy of this comment and felt that statement of recognizing a car could not be accurate since it was impossible to do so from the highway. The witness stated that he had found Andrew James to be a man of honesty, integrity and good moral character in his dealings with Andrew James, and he knew Andrew James as someone who could help him as Chief of Police and who gave him straight answers. He had been introduced to Andrew James through one Thomas Sewell (sic). Chief Ficke had testified for the defense in the course of the criminal court case involving Andrew James. In terms of certain complaints about activities within the bar, the witness indicated that Andrew James had never provided names and dates to enable certain complaints to be sworn about the activities in the bar. The co-licensee, Ocilla James, took the stand. She testified that she had been married to the Respondent in 1967 and prior to that marriage, she had been a partner with a Mr. Brown, who is deceased. From 1951 until 1962 she owned the bar with Mr. Brown, and no charges were placed against the bar in that time. At present, and during September, 1974, she had not been actively participating in the activities of the bar, therefore, had no knowledge of any of the circumstances about the bar's operation in September, 1974. Andrew James was called to the stand and he testified that he had never been arrested before this incident. He worked in Brown's Bar before 1967 and he became a co-owner in that same year. He has had no prior violations of the beverage law. He knows Agent Baker and indicated that Agent Baker had conducted an inspection of the bar at some time immediately preceding the October 4, 1974, search. During the course of the inspection, Andrew James indicated that Agent Baker told him that five years with no marks to his mind warranted having some marks. The witness said he indicated his displeasure with these kinds of remarks on the part of Agent Baker. Specifically, the witness said that Baker told him that if he caught anybody in the parking lot, he would pin it on him, and the witness said, "I told him to go ahead and pin it on me." The witness testified that he was in the bar on September 20, 1974, and September 28, 1974, but he did not sell any narcotics to Agent Fogle. He said that he knows Agent Fogle now because he has seen him in court. In connection with the activities of October 4, 1974, he indicated that a search was made of the bar, and that when the officers came to make the search, he offered to let them search in the stockroom, but they in fact only walked around. He also told them where they night search. By way of clarifying the physical description of the window to the stockroom he indicated that they did not have any chicken wire around the cubby hole, that it was the window from which you could see out front, and that that window was about two feet square. The witness said that in terms of providing names of persons in the course of the investigation that he had asked for, he admitted that he had not done that, but that on several occasions he had called the police to the bar. By way of clarification, the witness stated that Slim Brown did not work for him on Saturday morning, but that Slim Brown did come to the bar on his off duty hours sometimes. Nevertheless, he felt that on this occasion back in September, 1974, that he, Slim Brown, normally worked on his other regular job on Saturday and would not have been in the bar. Certain character witnesses were presented in behalf of Andrew James, among them was Raymond Lee Jones, Jr., of the Orange Federal Savings, Winter Garden, Florida. This witness is a City Commissioner of Winter Garden, Florida, and is also the President of the Orange Federal Savings of Winter Garden, Florida. He said that Andrew James' reputation in the community for truth, honesty, and integrity is excellent. He further stated that the licensee, Andrew James, has a mortgage with the Federal Savings. As a City Commissioner, he has friends in the black community, and several times has been outside the bar, but never inside the bar. Mr. C. H. Johnson, the Mayor of Winter Garden, Florida, took the stand as a character witness for Andrew James. The witness indicated that he, the witness, had been in the community 8 years and has known Andrew James and knows that Andrew James has a reputation in the community for truth, honesty and good citizenship. He says that the Jameses are leaders in the community, and at one time Andrew James was on the Mayor's Advisory Commission. The witness admitted on cross examination that he was standing election in November, 1975, and would be interested in the support of the black population, which he says is less than 20 percent. He has been in the bar three or four times, and the last time was three weeks before the hearing. He went there on the last occasion to volunteer his services as a character witness when he heard about the license revocation hearing. In closing, the witness indicated that he had not volunteered to give his testimony for Andrew James just to get black votes. He also stated that the licensee had asked him for assistance on a question of narcotics within the bar, though James had never given him any names of persons he thought were involved in narcotics. Theodore Vandeventer, Jr., Esquire, took the stand for Andrew James. Mr. Vandeventer had formerly been the City Judge of Winter Garden, Florida, and is now the Municipal Judge for the City of Oakland, Ocoee, and Windermere, Florida. He was the City Judge of Winter Garden, Florida, until November, 1974. He says that Andrew James' reputation for honesty, integrity and general character is excellent and he has known Andrew James since becoming Municipal Judge in Winter Garden. James was in his court as a complaining witness on several occasions. He stated that these occasions involved certain disorderly conduct and assault and battery type reports, but did not involve narcotics violations. Officer Fred Williams of the Winter Garden Police Department was called. He has been a policeman for approximately two years, he knows Andrew James, he has known him before he became a police officer and he knows him now. He knows his character and thinks he is honest and has integrity. Andrew James has a high reputation and is well thought of. He stated he would have to see the incident of a sale to believe that Andrew James had done it. A proffer was made upon testimony about overhearing a conversation between Riffle and Nathaniel Brown in which money was offered between Riffle and Nathaniel Brown. It was not admitted due to a ruling that the testimony was irrelevant. Witness Inez Marie Wright, 3457 Janet Street, Plymouth, Florida, was called and she indicated that she worked at the Sunland Center with mentally retarded children. She takes care of children in the center, and she is a bar maid at Brown's Bar at this time, and was so on September, 1974. She works Friday and Saturday afternoons and holidays. She was working September 20, 1974, and the Respondent was there at the time. She indicated that on that day she did not see any manila envelopes sold by the Respondent Andrew James or any sold by Slim Brown to Agent Fogle or any other person. She also stated that the Respondent tries to keep marijuana out of the place and if odd smoke is smelled, he goes and tells the people to leave. Additionally, Slim Brown tells them to leave and makes them do so. She testified that Andrew James never sold any marijuana or other drugs in the bar to her knowledge. She has known Brown 21 or 22 years and had never known him to be anything less than honorable. She revealed that Andrew James is a friend, but not a close friend, that she works at his bar and has known him for a long time. She said that she is not always behind the bar, that she works the floor and the bar. She indicated she has seen Andrew James talk to police and then seen people leave out of the bar after those conversations. She has seen Andrew James call the police and the police come and the people leaving afterward. The Respondents had certain other character evidence in the form of affidavits and letters which were admitted into evidence as Respondents' Exhibits #1 through #5. These items of evidence accompany this Recommended Order. Further development of the contents of those exhibits is developed under the section of the Recommended Order entitled EVIDENCE. The Respondents tried to introduce the results of a polygraph test administered by one Richard Charles Bennett, Jr., and this evidence was not admitted due to objections by the Petitioner's counsel. A more complete statement of the reasons for refusing to admit this evidence will be set forth in the section entitled CONCLUSIONS OF LAW. A proffer was made by counsel for the Respondents in which he indicated that nature and scope of the testimony of certain potential witnesses to wit: Clarence Jones, Alvin James, William Young, and Randall Porter. These witnesses were not allowed to testify and the statement of the reasons will be given in the section entitled CONCLUSIONS OF LAW. An oral stipulation was made between the parties concerning the prospective testimony of one Thomas W. Zeigler (sic) of Winter Garden, Florida. Mr. Zeigler is the manager of Zeigler Furniture Company and if he had testified, he would have testified to the following facts: On the date of the conclusions of the criminal case against the Respondent, Andrew James, which date was August 20, 1975, after 6:00 p.m., but before darkness set in, the witness drove past Irving Riffle's supermarket and at that time saw Agent Baker and Riffle out at that location. He drove by a second time, confirmed his identification of Baker. He has known both Agent Baker and Irving Riffle for some years. Having related through a general summary the context of the testimony offered in the course of the hearing, in some instances it is possible to reconstruct the fine thread which is the statement of the actual facts in issue. However, in the case at bar, this reconstruction would not seem to be possible, due to the numerous inconsistencies within the positions of the parties through the medium of their witnesses. Therefore, after much deliberation, it is not obvious to the undersigned what the actual facts are in this case, and this causes the outcome to be in favor of the Respondents. A more specific recitation of the reasons for this conclusion of law will be set forth in the section entitled CONCLUSIONS OF LAW. EVIDENCE Exhibits #1 through #8 as offered by the Petitioner were admitted into evidence over the objection of the Respondents. The first objection stated was that there was insufficient predicate established for the introduction of the evidence, specifically that nothing was shown to have been in the three envelopes that were allegedly purchased which are Exhibits #1, #3 and #6, to wit: the small green envelopes and the white envelope. An additional objection was that Slim Brown was not shown to have been an employee of the licensee, Andrew James. Finally, the Respondents felt that it had not been established that Eugene Fogle purchased anything, because Fogle stated that he did not know what was in the envelopes he purchased from Andrew James and Slim Brown. The following is a description of the evidential items: Petitioners/State's #1, admitted into evidence is a small, green envelope which is also Exhibit #7 in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692. Petitioners/State's #2, admitted into evidence is a clear envelope with contents which is also Exhibit #5 in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692. Petitioners/State's #3, admitted into evidence is a composite exhibit which contains a green envelope, a clear rectangular bag, and a clear elongular shaped bag with contents. Petitioners/State's Exhibit #4, admitted into evidence is a clear rectangular bag with an identifying tag which bag is Exhibit #1 in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692. Petitioners/State's Exhibit #5, admitted into evidence is a card with the name Andrew James affixed, with an identifying tag, which card is Exhibit #K in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692. Petitioners/State's Exhibit #6, admitted into evidence is a white envelope with contents, which is Exhibit #L in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692. Petitioners/State's Exhibit #7, admitted into evidence is a large manila envelope, which contains those items in Petitioners/ State's Exhibit #3, when they were brought to the hearing. Petitioners/State's Exhibit #8, admitted into evidence is a clear rectangular bag, with a buff colored identifying tag, which bag is Exhibit #6 in the Ninth Circuit Court of Florida, in and for Orange County, Case No. 74-2692. All items associated with Circuit Court Case No. 74-2692 cannot be forwarded with this Recommended Order because they are the subject of a protective order by the court in the referenced case. The balance of the items of the Petitioners/State's Exhibits numbers 1 through 8 are not forwarded because counsel for the Petitioner and counsel for the Respondents have not felt that this would be necessary under the existing circumstances. This latter position was made known to the hearing officer after discussing those remaining items which were not subject to the protective order of the Circuit Court in Case No. 74-2692. This discussion was between the Hearing Officer and the counsel for the Petitioner and Respondents. The Respondents' exhibits which were admitted into evidence were as follows: Exhibit #1, admitted, is an affidavit from one Thomas Sewell (sic), which accompanies this Recommended Order. Exhibit #2, admitted, is an affidavit from one Thomas Zeigler, which accompanies this Recommended Order. Exhibit #3, admitted, is a handwritten letter from one, Charles R. Nelson, which accompanies this Recommended Order. Exhibit #4, admitted, is a typewritten letter from one, Barbara Lewis, which accompanies this Recommended Order. Exhibit #5, admitted, is a typewritten letter from one, L. Frank Roper, which accompanies this Recommended Order, absent certain deletions, as stipulated to by counsel for the Petitioner and Respondents.
Recommendation In View of the Conclusions of Law reached by the undersigned, it is Recommended that the charges under consideration here, which date from activities on September 20, 1974, and September 28, 1974, relating to alleged sale of narcotics, to wit: cannabis sativa, in violation of Florida Statute 561.29, by facts showing a violation of Florida Statute 893.13, be discharged and the licensees Andrew James and Ocilla James, d/b/a Brown's Bar and Package Store, be no longer held to answer to these aforementioned charges. DONE and ENTERED this 21st day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William A. Hatch, Esquire (for the Director) Department of Business Regulation Division of Beverage 725 Bronough Street Johns Building Tallahassee, Florida 32304 Ralph V. Hadley, III, Esquire David, Henson & Hadlen, P.A. 200 West Welborne Winter Park, Florida 32789
The Issue Whether Respondent violated Sections 475.42(1)(a), and (b), and 475.25(1)(a), (b), and (e), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Florida Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated thereto. Respondent, Joan R. Marino (Marino), is now and was at all times material to this proceeding a licensed real estate broker in the State of Florida having been issued license number 0462547 in accordance with Chapter 475, Florida Statutes. On or about 1985 Marino became licensed by the Department as a real estate salesperson. Since late 1985, Marino has continuously been employed to sell real estate by real estate broker, Hal Simkaitis, and Prestige Property Investments, Inc. (Prestige). Some time in 1988 Marino became licensed by the Department as a real estate broker. Since September 30, 1989, Respondent has been employed by Prestige as a real estate broker-salesperson. Unbeknownst to Marino, her license expired on September 30, 1989. It is not clear from the evidence presented the reason for the expiration of the license. In December, 1991, Marino notified the Department of a change in her address by sending in Form 400.5. The form indicates that when a licensee is completing the form to notify the Department of a change of residence address that sections C and D2 are not required to be filled out. Those sections deal with information concerning the employer. Mr. Simkaitis correctly filled out the form for Marino and she signed it. However, the Department inadvertently put Marino's license on inactive status because section C was not completed. At or about the same time that Marino was advising the Department of her change of address, she was notified by the Department that she needed to pay her fees and complete an additional 28 hours of continuing education. The Department's records indicate that the fees paid included the fees for biennium 1989-1990 and 1991-1992. Ms. Marino completed the additional continuing education requirement. While with Prestige, Marino listed several of her own properties for sale. She owned a property located at 704-D Springdale Circle, Palm Springs, Florida, which she desired to sell; however she did not list the property with Prestige. On January 6, 1993, Marino in her own capacity as seller, negotiated a sales contract entered into by Joseph and Terri Marie Napolitano (Buyers) for the property on Springdale Circle. The Buyers gave Marino a $500 earnest money deposit. The contract required the deposit to be held in escrow by Marino. She placed the money in her personal checking account. The property was subject to the rules and regulations of the Springdale Homeowners Association, Inc. (Homeowner's Association). On February 20, 1993, the Buyers met with the Homeowner's Association's screening committee for a screening interview. During the meeting the Buyers were given a copy of the rules and regulations of the homeowner's association. Buyers had requested a copy of the rules and regulations from Marino but she had failed to provide them a copy. At the time of the interview, the Buyers owned three cats, one dog, and three vehicles. The rules allowed either one cat or one dog as a residential pet and only two vehicles per unit to be parked on the Springdale premises. Because the Buyers did not meet the homeowner's association's rules, the interview was terminated and a certificate of approval was not issued by the homeowner's association. Within three weeks of the interview, the Buyers gave away three of the four pets, sold one of the vehicles and purchased another home in the Springdale development, where Marino's property was located. The Buyers executed two releases of deposit receipt, one which would release the deposit to Marino and the other which would release the deposit to the Buyers. Marino felt the Buyers had breached the contract, did not accept either release, and kept the deposit. On February 24, 1993, Albert J. Gamot, Jr., attorney on behalf of the buyers, made a demand upon Marino for the return of the $500 earnest money deposit. Subsequent to February 24, 1993, the Buyers filed a complaint against Respondent in the civil division of Palm Beach County Court. Marino counterclaimed for lost rents and expenses incurred to ready the property for closing. On June 18, 1993, Judge Jeffrey J. Colbath issued a Final Judgement for the Buyers in the sum of $500 plus court costs in the amount of $97.30. In March, 1994, Marino paid the judgement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts I and III of the Administrative Complaint, finding the Respondent guilty of violating Section 475.42(1)(a), Florida Statutes, as alleged in Count II of the Administrative Complaint and imposing an administrative fine of $250. DONE AND ENTERED this 15th day of June, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 15th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-771 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact Paragraphs 1-2: Accepted. Paragraphs 3-4: Accepted in substance. Paragraph 5: Accepted. Paragraphs 6-10: Accepted in substance. Paragraphs 11-14: Accepted. Paragraphs 15-19: Accepted in substance. COPIES FURNISHED: Theodore R. Gay Senior Attorney Department of Business and Professional Regulation 401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128 William M. Winkel, Esquire 2628 Forrest Hill Blvd. West Palm Beach, Florida 33406 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Darlene F. Keller Division of Real Estate Divison Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes, and Rules 11B- 27.0011(4)(a), 11B-27.0011(4)(b), and 11B-27.0011(4)(c), Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Osborne was employed as a police officer with the Winter Haven Police Department. Approximately 15 times during 2001, Osborne picked up a prostitute, Sandra Cornell (Cornell), in his police vehicle and had sex with her while he was in his police uniform. The first time Osborne picked up Cornell, he was in his police car parked near a church in Winter Haven, Florida. Cornell was walking down the street, and Osborne called her over to the police car and asked her what she was doing that night. She told him that she was trying to make some money, and he told her to get in the back seat of the car. She got in the vehicle, and he drove to a spot near Publix and a nursing home. He told her, "Nobody will bother a police car." They got out of the car, and she performed oral sex on him. Osborne paid her $10 and gave her some cigarettes. The second time that she had sex with Osborne, he gave her $5. However, he discontinued paying Cornell for her services after their second encounter. Cornell continued to have sex with Osborne without payment, believing that he would arrest her if she did not continue to have sex with him. Another time Osborne picked Cornell up in the parking lot of the Regency Inn and told her to get in the back of the police car and lie down. She did as she was told. Osborne drove them to a water tower near the Regency Inn, where they had sex. Another time Osborne, while in his police uniform, picked Cornell up in the early morning hours and took her to Silver Lake in his police car. Osborne was on duty at the time. While the couple was having sex, Osborne received a police call. He left Cornell at Silver Lake so that he could respond to the call, and she had to walk back to town. The Winter Haven Police Department conducted an Internal Affairs investigation of Osborne's activities with Cornell. On July 19, 2002, Osborne was interviewed under oath by Lieutenant Katy Goddard and Lieutenant Jim Allen. During the interview, Osborne was asked the following questions and gave the following answers under oath: Q. Have you ever rode uh Sandy Cornell in your patrol vehicle . . . A. No, I have not. Q. . . . let me finish the question--in an unofficial business? A. No. * * * Q. Have you ever had sex with Sandy Cornell on duty? A. No, I have not. Q. Have you ever had sex with Sandy Cornell off duty? A. No, I have not. On December 6, 2002, the Department filed an Administrative Complaint against Osborne, alleging that the Criminal Justice Standards and Training Commission had issued Osborne an auxiliary law enforcement certificate and a law enforcement certificate on December 28, 1994. Osborne filed an elections of rights form on January 8, 2003, requesting an administrative hearing and disputing only the factual allegations dealing with having sexual relations with Cornell and soliciting another prostitute for sex. Osborne has not contested that he is a certified auxiliary law enforcement officer and a certified law enforcement officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jimmy Osborne did not violate Subsection 943.1395(6); finding that Jimmy Osborne did violate Subsection 943.13(7) and Rule 11B-27.0011(4)(a), (b), and (c), Florida Administrative Code; and revoking his certification as an auxiliary law enforcement officer and a law enforcement officer, pursuant to Subsection 943.1395(7). DONE AND ENTERED this 9th day of October, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 October, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jimmy Osborne 902 9th Street, Northeast Winter Haven, Florida 33881 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for consideration in this matter is whether Respondent is guilty of misconduct which impairs his effectiveness as a school teacher sufficiently to justify his dismissal from employment with the Pinellas County School Board.
Findings Of Fact Petitioner, Pinellas County School Board, (Board), is the county agency responsible for providing public primary, secondary and adult education in Pinellas County, and to facilitate that responsibility it hires certified teachers for classroom and administrative activity. Respondent, Richard L. McNeill, is a teacher certified by the State of Florida, holding a continuing contract of employment with the Board, and at the time in issue, and effective in November, 1994, was occupying a grant writing position at the Board headquarters. From 1980 to 1994, he taught English and journalism at Countryside High School, and has been employed as a teacher in the Pinellas County school system for 24 years. On February 10, 1995, Respondent went to Clearview Elementary School, in his private car, at approximately 12:30 PM on official business. Prior to leaving the Board offices, he discussed with Dr. Brown, his supervisor, the need to pick up materials at Countryside High School. He indicated he would pick them up after going to Clearview that afternoon, but if he could not do so, would pick them up over the weekend. From this discussion, Respondent asserts it was understood by the parties that Respondent would not return to the Board office building that afternoon. Neither Dr. Brown nor his secretary recall it as happening that way. The fact remains, however, that the incident took place during the work day, and there is no confirmation by anyone in authority of Respondent's claims he was authorized compensatory time off. After completing his business at Clearview, Respondent left the school at approximately 2:50 PM, and instead of taking the most direct route north to his office, Countryside or home, he went instead to the beach that runs along Gandy Boulevard in Pinellas County on Tampa Bay where, he claims, he intended to jog. This area is heavily overgrown with mangrove trees and is not suitable for jogging. The Pinellas County Sheriff's office had received numerous complaints regarding loitering and lewd conduct in the area, and as a result, the Sheriff had set up an undercover operation to monitor the situation. Arriving at his intended jogging site, Respondent changed his clothes and began to walk into the mangrove area that runs between Gandy Boulevard and the water. On his way out of the mangroves, he passed another individual going in the opposite direction. After walking forward for a short while, he stopped and turned to look back, only to find that the other person had also stopped and was looking back his way. Respondent then walked toward this individual, later identified as an undercover police officer, until they were a couple of feet apart. The parties engaged in a short conversation during which, the officer claims, Respondent kept his eyes on the officer's groin area. At this point, not knowing who the individual was, Respondent asked if it was safe, to which the individual responded that it was. Respondent claims he intended his question to relate to the physical safety of being in the area. The officer, however, interpreted the question as being one frequently asked by individuals seeking a homosexual contact, to determine if it is safe to solicit or engage in that type of conduct. Respondent then moved to within a foot of the officer and reached over and touched the officer in the groin area. Whereas Respondent claims he touched the officer only on the outside of the individual's sweat pants, at the stomach area, the officer claims Respondent grabbed his groin area with one hand and with the other, pulled out the drawstring of the officer's sweat pants and attempted to place his hand inside the pants. In any case, at no time did the officer give Respondent permission to touch him. Respondent was not incarcerated as a result of the arrest but was released immediately. In light of Respondent's testimony at hearing that his purpose in touching the officer was, "...to see how friendly he was, what he wanted to do, what he didn't want to do", it is found that the touching was a sexually suggestive act which, had it been more positively received, might well have resulted in a physical relationship between them. It is irrelevant that the incident took place in a densely overgrown area of the mangroves and that no one else was about. That evening Respondent told his wife what had happened and several days later advised several coworkers that he had committed a serious indiscretion, had been arrested, and intended to fight the charge. After the incident in question, Respondent sought the services of a licensed mental health counselor with whom he has worked since that time. In the opinion of the counselor, Respondent has been forthcoming in dealing with some long-standing internal conflicts, and the prognosis for any similar future acts is extremely low. As a result of the incident, Respondent was charged with criminal battery, but was acquitted upon trial in Circuit Court on the ground that the evidence did not support a non-consensual touching. The court did not find that the touching did not take place. The incident was reported in a newspaper article published in the St. Petersburg Times. Thereafter, on February 21, 1995, Respondent was notified by certified letter from the Superintendent, Dr. J. Howard Hinesley, that a recommendation was to be made to the Board that he be dismissed based on the touching which took place on February 10, 1995 during working hours. It was Dr. Hinesley's position that Respondent's action constituted immorality and misconduct in office. Respondent requested a formal hearing. Dr. Hinesley noted at hearing, however, that if the evidence established that Respondent touched the officer only on the stomach, dismissal is not an appropriate remedy. He further noted at hearing that if the Respondent were found to have taken compensatory time at the time of the alleged incident, that would not be a basis for discipline here because there is no documented pattern of abuse. There is no question that Respondent's teaching career has been exemplary and all his performance evaluations have been positive. On four occasions he was selected Countryside High School Teacher of the Year. He has also twice been selected as District Four Regional Journalism Teacher of the Year, and has also been selected the State of Florida Journalism Teacher of the Year. In 1992 he was given an award for environmental education by the Governor of Florida and in 1993, an award by the Environmental Protection Agency. He has also received a number of distinguished advisor awards. Respondent has been married for 24 years and has two children. He has lived in the same community for 17 years and is consistently involved in community and church projects. He is well thought-of in his community and among his peers. The Superintendent has concluded that Respondent's actions have impaired his effectiveness as a teacher. This position was supported by Dr. O'Howell of the Board's office of professional standards, and two citizens opined that Respondent should not continue as a teacher because of this incident, though neither knows him or has any information on actual impact of his actions on students. Dr. Hinesley's opinion is based on his perception of young people as being impressionable. Both he and Dr. O'Howell also see Respondent's actions as a violation of community standards, but neither indicated they had any specific information from students, parents or coworkers to support their position. On the other hand, twenty-five citizens, parents, friends, coworkers, former supervisors and students lauded Respondent's performance as a parent, citizen, and, most specifically, a teacher, indicating he challenged his students, taught them how to think, and set a moral, ethical and performance example worthy of emulation. In addition to those individuals who testified in person, an additional twenty-five individuals submitted letters in support of the respondent, indicating their belief he can effectively perform his duties. The Executive Director of the Pinellas County Classroom Teachers Association for the past 21 years, Jade Moore, has, over the term of his incumbency, dealt repeatedly with matters of employee discipline. In his opinion, the Respondent's misconduct did not involve students and should not serve as the basis for dismissal. In that regard, the Board's long-standing policy on matters of this nature, recently reduced to writing, has been to recommend dismissal in cases where the culpability of the employee has been established. In a case referred to by the Respondent, where the employee was not dismissed, the employee was arrested for soliciting for prostitution, but the charges were dismissed prior to trial. In most cases, it would appear the employee resigned in lieu of disciplinary action being taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT Respondent be reinstated as of the date of the Board's Final order but not be awarded back pay and benefits, during the period of suspension. RECOMMENDED this 21st day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21st day of September, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. - 20. Accepted and incorporated herein. Accepted that a touching occurred and that the touching was a suggestion of sexual activity or a prelude thereto. Last sentence accepted. & 23. Accepted and incorporated herein. & 25. Accepted but not probative of any material fact. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein except for last sentence which is rejected as not proven. - 9. Accepted and incorporated herein. Accepted that Respondent touched the officer on the outside of his pants below the waist. Balance accepted and incorporated herein. Not a Finding of Fact but a restatement of testimony and a comment on the evidence. It has been established that a touching took place, that the touching was below the waist, and that the officer did not agree to the touching. Not a proper Finding of Fact. The officer's former statement was not introduced into evidence. The issue is immaterial, however, in light of the remainder of the evidence. Not proven. & 15. Accepted and incorporated herein. - 19. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board 301 Fourth Street, S.W. P.O. Box 2942 Largo, Florida 34649-2942 Mark Herdman, Esquire 34650 U.S. Highway 19 North, #308 Palm Harbor, Florida 34648 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street, S.W. P.O. Box 2942 Largo, Florida 34649-2942 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Frank T. Brogan Commissioner of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether the certification of Samuel D. Stevens as a law enforcement officer should be revoked for failure of Mr. Stevens to maintain good moral character as required by Section 943.13(7), Florida Statutes.
Findings Of Fact Samuel D. Stevens was certified by the Criminal Justice Standards and Training Commission on November 19, 1982, certificate number 0232529 (Tr. 52-3*). Mr. Stevens was employed in 1985 by the City of Winter Haven Police Department (Tr. 19). James D. Kirkland and Mark Myers were Winter Haven police officers (Tr. 13, 17). On March 14, 1985, Kirkland and Myers were working undercover and went to the Inn Club in Winter Haven where they tried to purchase cocaine or heroine from club employees (Tr. 19-20, 25). At that time, they dressed in street clothes (Tr. 20), and kept their identities secret as they attempted to gain the trust of employees to be able to purchase drugs (Tr. 20-23). When Kirkland arrived at the Inn Club, he saw a man he knew to be a police informant, Tony Thomas (Tr. 23). The Winter Haven Police Department kept Mr. Thomas' status as an informant secret. His status was not known to the Respondent, Mr. Stevens (Tr. 16-19, 49, 51). Officer Myers and Mr. Thomas walked outside the Inn Club through a parking lot to use a public telephone. As they did so, Samuel Stevens drove into the parking lot and saw Myers and Thomas together (Tr. 23, 24). Stevens entered the club while Officer Kirkland was inside (Tr. 23); Officers Myers and Kirkland then left the club (Tr. 24). On March 15, 1985, Officer Kirkland and an investigator from the State Attorney's Office, Mr. Martin Hodges, met with Tony Thomas (Tr. 5, 25). Before that meeting, Thomas had told Hodges that illegal drugs were being sold by people living at 1904 Brown Street, Winter Haven (Tr. 6), the residence of his half-brother, Calvin Tribett. Tribett was selling the drugs, and Respondent Stevens lived in the same residence. Thomas believed Stevens was aware of the drug sales (Tr. 15, 19). When Kirkland and Hodges met with Thomas on March 15, 1985, Thomas agreed to wear a concealed microphone, which was placed on him (Tr. 12, 48). Kirkland and Hodges instructed Thomas to go to the Brown Street address and attempt to buy marijuana (Tr. 7, 8, 28). Officer Kirkland gave Thomas $40.00 to buy the marijuana (Tr. 7-8). Kirkland and Hodges then drove Thomas near the residence and let him out of the car (Tr. 8). The officers positioned themselves about two blocks from the residence to listen to the conversation through the monitoring equipment Thomas wore. They also taped the conversations (Tr. 8, 9, 29). Those conversations were transcribed (Tr. 31, 32; Petitioner's Exhibit 1). When Mr. Thomas came to the residence he spoke with his half-brother, Calvin Tribett. Tribett told Thomas that "Sam" had told him that the men Thomas had been with at the Inn Club were "narcs" (Tr. 9; Petitioner's Exhibit 1). Officer Kirkland then recognized the voice of Samuel Stevens in the conversation. He knew Stevens' voice, for he had trained Stevens for police duties (Tr. 14-15, 33, 36). Respondent Stevens warned Thomas that the men he was with the night before were police narcotics officers and identified Officer Kirkland by name (Tr. 11, 12, 32, 34; PX-1). During the same conversation, Mr. Thomas stated that he was there to buy marijuana and Stevens volunteered to take Thomas in Stevens' car to buy marijuana (Tr. 49, 50; PX-1). Shortly thereafter on March 17, 1985, Mr. Thomas met Respondent Stevens and Calvin Tribett at a local Pizza Hut. Stevens warned Thomas again that the men he had been with at the Inn Club were narcotics officers and identified them by name as Detective Kirkland and Officer Mark Myers (Tr. 48, 49). On March 26, 1985 Officers Kirkland and Myers met with Thomas and again placed a concealed microphone on his person (Tr. 47, 50). Under a plan devised by Kirkland (Tr. 39, ln. 20), the officers gave Mr. Thomas a handgun and instructed him again to go to Respondent's Brown Street address, to tell Respondent the gun was stolen and to request Mr. Stevens to buy the gun (Tr. 37). Mr. Thomas followed those instructions, and Officers Kirkland and Myers listened to the conversation (Tr. 38-39). Thomas told Stevens the gun was stolen and for sale. Stevens declined to buy the gun and advised Thomas to "get rid of it" (Tr. 39; Petitioner's Exhibit 1). Mr. Stevens made no report of the incident to the Winter Haven Police Department and did not attempt to return the "stolen" gun to its rightful owner (Tr. 40, 44, 45).
Recommendation Based upon the actions of Mr. Stevens in exposing fellow officers to danger by identifying them as narcotics agents, it is recommended that the certification of Mr. Stevens by revoked. DONE AND ORDERED this 7th day of July 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July 1986.
