Findings Of Fact The parties stipulated that Petitioner, Gary N. Piccirillo, was afforded a presumptive parole release date interview on May 14, 1982. Thereafter, on June 9, 1982, Respondent, Florida Parole and Probation Commission (FPPC), considered Petitioner's presumptive parole release date (PPRD) and set it for September 30, 1986. On June 28, 1982, Petitioner sought review of his established PPRD pursuant to Rule 23-21.12, Florida Administrative Code, and Section 947.173, Florida Statutes. In November 1983, a special parole interview was granted Petitioner, but the Commission at that hearing declined to change or modify Petitioner's PPRD. Petitioner's next biennial interview for review of his PPRD is scheduled for September 1984. However, Petitioner is currently scheduled to be released from confinement in either September or October 1984, if he is given credit for all earned gain time. Petitioner questions that portion of the rule which provides for only one review of the Commission action establishing or changing the PPRD, but apparently fails to recognize that portion which also provides for subsequent (biennial, special, or effective) establishments of PPRD, which tend to ensure at least periodic reviews of the PPRD. Petitioner attacks the validity of the rule, as amended on October 1, 1982, as it pertains to Sections (1)(e) and (2). He contends that (1)(e), which calls for verification of written or printed evidence provided directly by the inmate and notification to the proper state attorney if any of this evidence is invalid because it constitutes a threat of a penalty, which tends to inhibit the average inmate from presenting evidence he might otherwise present. Petitioner does not question the propriety of reporting false information, only the inclusion of a basis for doing so within the rule. Petitioner also contends that that portion of Paragraph (2) of the rule which provides that the Respondent will not address matters within certain categories, unless new factual information came into existence after the initial interview, is unfair, unduly restrictive, and places an unreasonable burden on prisoners who would be unprepared psychologically to present all their information at the initial interview in its best light. Petitioner contends that after the newness of incarceration wears off and the individual is more comfortable with the system, he would be better prepared to present this information again.
The Issue Whether the Petitioner’s request for an exemption pursuant to Chapter 435, Florida Statutes, should be granted.
Findings Of Fact Mr. Saunders seeks an exemption for employment in a position for which a security background check is required pursuant to Sections 397.451 and 435.04, Florida Statutes. Presently, Mr. Saunders is employed as an intern human service worker at Reliance House, an adult residential facility located in Panama City, Bay County, Florida. In addition to working at Reliance House, Mr. Saunders is enrolled at Gulf Coast Community College working toward a degree as a Certified Addition Associate Professional. Mr. Saunders sought this exemption so that he could work with children receiving substance abuse services. In 1990, Mr. Saunders was charged with and plead nolo contendere to the charges of burglary, possession of burglary tools, and carrying a concealed weapon. Mr. Saunders was placed on two years' probation. In 1991, Mr. Saunders pled guilty to the charges of burglary of a structure, attempted burglary of a structure, grand theft, criminal mischief, and burglary of a business. In 1992, Mr. Saunders was charged with burglary of a liquor store. Mr. Saunders testified that the burglary charge was reduced to a charge of criminal trespass and that he remained under court supervised probation until October, 1996. Mr. Saunders expressed remorse for his criminal behavior and accepted complete responsibility. He also believes that he shares some of the same problems that are exhibited by the residents of Reliance House and that he would be a good role model because he is attempting to correct his life. Christiane LeClair is a background screening coordinator employed by the Department of Children and Families. As part of her duties, Ms. LeClair reviews employment applications to determine if an applicant is worthy of a position of special trust. Ms. LeClair determined that Mr. Saunders was not qualified because of his conviction of grand theft. She also noted that Mr. Saunders has been released from supervision of the courts for only three months and that it is too early to determine if he has been rehabilitated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order and therein DENY Mr. Saunders’ request for an exemption.DONE and ENTERED this 12th day of March, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997.
Findings Of Fact O.L.T., the Petitioner, was hired by Disc Village, Inc., as a youth counselor at Greenville Hills Academy in December, 1995. Because of the nature of the employment, the Petitioner provided Disc Village, Inc. a fingerprint card for the purpose of conducting the statutorily required criminal records check. The Petitioner reported his prior arrest and subsequent plea of guilty to criminal charges in South Carolina to his employer at the time of his application for employment. The criminal records check reveal the Petitioner's arrest and the investigator at the Department of Health and Rehabilitative Services (DHRS), which was administering this part of the program at the time, requested the Petitioner to provide them information regarding his criminal record in South Carolina in order to determine if the offense involved was disqualifying under the Florida law. The records from South Carolina were provided to DHRS by the Petitioner, and revealed he had plead guilty to "conspiracy to possess cocaine with intent to distribute," in Horry County, South Carolina on December 7, 1987. Based upon these records, which were provided to the Department of Juvenile Justice (DJJ) by DHRS when DJJ assumed full administration of the juvenile justice program, DJJ determined that the Petitioner was disqualified from employment as a youth counselor, and advised Disc Village, Inc., which discharged the Petitioner from the position in which he was employed. The Petitioner's court records from South Carolina were introduced as Department's Exhibit 3. These records reveal that the Petitioner pleaded guilty to "conspiracy to possess cocaine with intent to distribute." These records do not reveal the statute to which the Petitioner pleaded guilty. The sentencing document references only the indictment (87-GS-26-1796). Indictment 87-GS-26-1796 does not reference a specific statute, but recites the Petitioner did "knowingly, wilfully and intentionally, combine, conspire, confederate and agree between and among and have tacit understanding with a reliable informant working with the Myrtle Beach Police Department and with other evil disposed persons whose names are unknown to the Grand Jurors for the purpose of Possessing Cocaine with Intent to Distribute." Joint Exhibit 1 is a copy of a portion of the South Carolina Code defining criminal offenses involving possession of drugs. There are two portions of the exhibit which address conspiracy, Section 44-53-370(e) and Section 44-53-420. Section 44-53-420 provides that any person who attempts or conspires to commit any offense made unlawful by the statutes, shall be fined or imprisoned not more than half of the punishment prescribed for the offense which was attempted or which was the object of the conspiracy. Section 44-53-370(e) provides that any person who knowingly sells, manufactures, delivers, or brings into this state, or who provides financial assistance or otherwise aids, abets, or conspires to sell, manufacture, deliver, or bring into this state, or who is knowingly in actual or constructive possession of: (1) ten pounds of marijuana . . . ; (2) ten grams or more of cocaine or any mixtures containing cocaine is guilty of a felony which is known as trafficking in cocaine and upon conviction must be punished as follows if the quantity is: (a) ten grams or more, but less than twenty-eight grams, . . . not less than three years . . . ; (b) twenty-eight grams of more, but less than one hundred grams . . . not less than twenty-five years . . . [.] These are mandatory minimum sentences. The Petitioner was sentenced to one year in prison, and that sentence was suspended and he was placed on one years probation. Although the Petitioner was arrested for conspiracy to possess more than 28 grams of cocaine, the indictment and sentencing documents do not reflect that he was charged with that offense, and his sentence is less than the minimum mandatory sentence for either of the offenses regarding possession or conspiracy to possess cocaine, even if the court reduced the sentence by a half pursuant to Section 44-53-420. None of the court records establish an amount of cocaine which Petitioner was charged with possessing, conspiring to possess, or to which the Petitioner plead guilty to conspiring to possess. The Petitioner is a Black male who graduated from Florida A and M University, and was commissioned in the U.S. Air Force. He was employed by the Florida Probation and Parole Commission as a probation officer until going on active duty in the Air Force where he was trained as an Air Policeman. He left the Air Force and was employed as by the Commission of Alcoholism and Drug Abuse in South Carolina where he established diversion programs for persons charged with driving under the influence. He was subsequently employed in the low energy assistance program of the state, and then left state employment to work for C & S Bank, at which time he left South Carolina. Subsequently, he left C & S and returned to South Carolina where he started his own construction company. Because of financial hard times, he lost money and had to declare bankruptcy. At the time of the events which gave rise to the charges against him, his wife was employed by the local prosecuting attorney, and he was well known to local law enforcement officers. In 1987, he was working in Myrtle Beach, South Carolina; and it was his practice to eat lunch with a group of persons who were self employed, none of whom were involved in illegal dealings. This group of acquaintances also got together occasionally after work for a drink, and at one of these meetings one of the members of the group raised the possibility of investing in an enterprise which was not described, but which was represented to be very lucrative. From the way it was presented and very large return which was available, the Petitioner concluded it was an illegal activity, and was shocked that this person would make this representation. When he left the meeting, he was asked whether he wished to participate, he indicated that he would have get back to them about it. Upon leaving the meeting, Petitioner commented to one of the other attendees that the enterprise was undoubtedly illegal and something to be avoided. Several days later, he received a telephone call after having been out with another group of friends drinking. The caller did not identify himself and was not a party to the earlier meeting; however, the caller referenced that meeting. The caller advised the Petitioner that the caller had $40,000, and indicated indirectly he was calling about drugs and wanted to meet with Petitioner. The Petitioner said he did not know what the caller was talking about, but would meet him in a vacant parking lot, very close to Petitioner's house, to determine what the caller was calling about. The Petitioner did not acknowledge in the call what the caller was talking about or agree to do anything beyond meeting the caller. Petitioner admitted that he had been drinking most of the evening, was drunk, and agreed to meet with the caller just to see if he really had the money. The Petitioner thought it could be a practical joke, and really did not give a great deal of thought to the matter because he was so drunk. The Petitioner had picked the vacant parking lot in which to meet the caller because it was close to Petitioner's house and he would not have to drive far as drunk as he was. The area was also well lighted and he felt safe there. Petitioner arrived at the parking lot, stopped his car, and was immediately surrounded by police officers who arrested him for conspiracy to traffic in cocaine. A search of Petitioner revealed Petitioner was carrying twenty-seven cents. A search of his wife's car, which he had driven to the meeting, revealed his wife's pistol for which she had a permit and which she kept under the driver's seat. The Petitioner knew the gun was there. There were no drugs found in the car. The caller was not present, and was never arrested or identified. Petitioner was represented by the former solicitor (prosecutor) for the county. Petitioner and his attorney listened to the tape of the telephone conversation shortly after Petitioner's arrest. The tape was consistent with the Petitioner's testimony above; however, prior to trial, a copy of the tape was produced which was altered to be more damaging. Petitioner's attorney indicated that it would be very expensive to have the tape analyzed and to fight the charges, and that Petitioner could be sentenced up to twenty-five years for the offense. Petitioner's attorney advised Petitioner that the prosecutor was offering one year's probation if Petitioner plead guilty. On the advise of counsel, Petitioner accepted the plea bargain. The Petitioner satisfactorily completed his probation, and has spent the intervening time supporting his children by working at various occupations to include installing cable TV and working on a electronic components assembly line after his return to Madison, Florida. He has attempted to rehabilitate his reputation by working regularly, avoiding disreputable persons, and attending church regularly. His employment with Disc Village, Inc. was his first attempt to reenter the criminal justice field since his probation. At the time of the hearing, Petitioner was volunteering as a facilitator in a life skills class, but was unemployed. Petitioner's coworkers and supervisors testified in his behalf. They found him to be honest, truthful, and morally upright in his actions and dealings with them and the young people with whom he counseled. He spent many extra hours at the facility, and respected by young people for whom he was an effective counselor. Petitioner would not be a danger to young people. No credible evidence was presented that the Petitioner did not possess good character or was a danger to children. Since his probation, the Petitioner has had no further criminal involvement. He has been gainfully employed until discharged from Disc Village, and has been engaged in worthwhile volunteer work since then. He attends church regularly, sings in the choir, and lives with a minister. Petitioner has amended his life, and has a reputation of being honest and truthful. His work with the young people at Disc Village was exceptional, and he was held in high esteem by the staff and the young people.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That Petitioner be qualified to work with youth in the Department's facilities and those of its contract agencies. DONE and ENTERED this 8th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 8th day of December, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3630J The parties submitted proposed findings of fact which were read and considered. The following states which facts were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Irrelevant. Paragraph 3 Paragraph 1. Paragraph 4 Paragraph 2. Paragraph 5 Irrelevant. Paragraph 6 Paragraph 3. Paragraph 7 Subsumed by Paragraph 4. Paragraph 8 Paragraphs 3,5. Paragraph 9 Subsumed by Paragraph 6. Paragraphs 10-12 Irrelevant. Paragraphs 13-16 Subsumed in Paragraph 18. Paragraphs 17-20 Irrelevant. Paragraphs 21-23 Subsumed in Paragraph 18. Paragraphs 24-26 Irrelevant. Paragraphs 27-31 Subsumed in Paragraph 18. Paragraphs 32-35 Discussed in the C/L and rejected as credible witnesses regarding the Petitioner's character Paragraphs 36-40 Unnecessary. Paragraphs 41,42 Subsumed in Paragraph 17. Paragraphs 43,44 Conclusions of Law (C/L). Respondent's Recommended Order Findings Paragraphs 1-3 Subsumed in Paragraphs 1,2 Paragraph 4 Conclusion of Law. Paragraphs 5,6 Subsumed in Paragraph 1. Paragraphs 7-9 Subsumed in Paragraph 4. Paragraphs 10,11 Subsumed in Paragraph 2. Paragraph 12 Paragraph 3. Paragraph 13 Paragraph 7. Paragraphs 14,15 Subsumed in Paragraph 4. Paragraphs 15-17 The discussion of the informal hearing and its results is irrelevant. Paragraph 18 Rejected as contrary to more credible evidence. Paragraphs 19-21 Irrelevant. Paragraph 22 Conclusion of Law. COPIES FURNISHED: Richard M. Summa, Esquire Post Office Box 1677 Tallahassee, FL 32302 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, FL 32399-3100 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, FL 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, FL 32399-3100
Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
The Issue The issues in this case are whether Petitioner committed a public entity crime as that term is defined in Section 287.133, Florida Statutes (2000), and, if so, whether it is in the public interest to place Petitioner's name on the convicted vendor list maintained by the Department of Management Services (the "Department").
Findings Of Fact On March 22, 2000, Petitioner and White Construction Company, Inc., were charged by a twelve-count criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. Petitioner's indictment arose out of certain work he performed after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages and to testify regarding those matters in depositions and, if necessary, at trial. On August 30, 2000, Petitioner entered a plea agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Petitioner entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida, an amount equaling the fees that Petitioner was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One through Six and Nine through Twelve against Petitioner, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Petitioner "admits the facts of the charge." Counts Seven and Eight of the indictment charged Petitioner with two counts of Grand Theft, in the first degree, and both counts provided in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use, or endeavor to obtain or use U.S. Currency or other property with an equivalent value, to-wit: "delinquency days," with a value of $100,000 or more, the property of another, to-wit: Florida Department of Transportation, hereinafter: FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or a benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false or fraudulent claim(s) or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. . . . Count Seven related to Project No. 36210-3439 on Interstate 75 in Marion County, Florida, and to activities which allegedly occurred between January 8, 1996, and January 30, 1998. Count Eight related to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 in Marion County, Florida, and relates to activities which allegedly occurred between April 15, 1996, and January 30, 1998. At the hearing in this matter, Petitioner testified that he prepared damage and extension of time claims, based on information that was provided to him by the attorneys for White Construction Company. Petitioner testified that he did plead guilty to Counts Seven and Eight, which involved instances of billing the Florida Department of Transportation ("FDOT") for the same equipment at different locations on the same day. It is undisputed that first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes. Petitioner did not notify the Department that he had been convicted of a public entity crime within 30 days of his conviction, as required by Subsection 287.133(3)(b), Florida Statutes (2000). Petitioner testified that, at the time of the plea, he was unaware of this statutory requirement. Petitioner was represented by counsel in the criminal proceedings, and testified that his lawyer did not mention Section 287.133, Florida Statutes (2000), in their discussions. Petitioner further testified that the statewide prosecutor did not mention the public entity crimes statute during plea negotiations. Section 287.133, Florida Statutes (2000), is not mentioned in the plea agreement. Petitioner further contends that the fact that adjudication was withheld as a result of his plea agreement establishes that he was never "convicted" of a public entity crime. Subsection 287.133(1)(b), Florida Statutes (2000), defines "conviction" as "a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere." (emphasis added) Petitioner's contention that he was not "convicted" is therefore without merit. However, Petitioner's belief that he had not been convicted of a crime is credited. Even if he had been aware of the requirements of Section 287.133, Florida Statutes (2000), Petitioner in all good faith would not have believed that he was under any obligation to report his conviction. In addition to requiring a person convicted of a public entity crime to inform the Department within 30 days of his conviction, Subsection 287.133(3)(b), Florida Statutes (2000), requires any public entity which receives information that a person has been convicted of a public entity crime to transmit that information to the Department in writing within 10 days. Subsection 287.133(1)(f), Florida Statutes (2000), defines "public entity" as "the State of Florida, any of its departments or agencies, or any political subdivision." The Office of Statewide Prosecution, which was the signatory party to Petitioner's plea agreement, never informed the Department of Petitioner's conviction. In 2002, the Florida Engineers Management Corporation on behalf of the Board of Professional Engineers issued a complaint against Petitioner, seeking to discipline his license as a professional engineer because of the acts alleged in the indictment and the crimes to which Petitioner pled guilty. Petitioner contested the proposed discipline and the matter went to a full evidentiary hearing before a judge of the Division of Administrative Hearings. See Florida Engineers Management Corporation v. Cooper, Case No. 02-3167PL (DOAH January 6, 2003). Neither the Florida Engineers Management Corporation nor the Board of Professional Engineers informed the Department that Petitioner had been convicted of a public entity crime. Petitioner presented documentary evidence indicating that Michael K. Bowen, an FDOT employee, filed the complaint that led to the investigation that culminated in Case No. 02-3167PL. The complaint was filed with the Board of Professional Engineers on September 13, 2001, more than one year after Petitioner's plea agreement was entered. In the Recommended Order in Case No. 02-3167PL, the Administrative Law Judge recommended that the charges against Petitioner be dismissed, based on the conclusion that the allegations did not directly relate to the practice of engineering or the ability to practice engineering. The Agency's Final Order, dated May 15, 2003, rejected the Administrative Law Judge's conclusion and imposed a six-month license suspension and a fine of $1,000.00 on Petitioner. On June 16, 2003, Petitioner filed a notice of appeal with the First District Court of Appeal. Petitioner and the Board of Professional Engineers settled the appeal, and Petitioner voluntarily dismissed the case on October 23, 2003. See Cooper v. State of Florida, Board of Professional Engineers, Case No. 1D03-2542. Petitioner testified that he believed the dismissal of his appeal would mark the end of his legal problems, some three and one-half years after the filing of the indictment. By letter to Steve Rumph, the Department's inspector general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's inspector general, reported the "criminal conviction of Luther White, Jr., William Thomas Cooper, Jr., and White Construction Company, Inc. of Chiefland, Florida." The letter notes that Petitioner entered his guilty plea to two counts of grand theft and agreed to repay FDOT $84,000 in addition to permanent debarment from doing business with or associating with any business doing work with FDOT. The letter correctly states that the plea agreement was entered on August 30, 2000. It is notable that Mr. Bragg concludes the letter by directing any questions to "Investigations Manager Michael K. Bowen." Michael K. Bowen was the same FDOT employee who filed the complaint against Petitioner with the Board of Professional Engineers on September 13, 2001. Thus, the documents in this case establish that FDOT knew of Petitioner's conviction no later than September 13, 2001,1 yet waited nearly four years before notifying the Department of Petitioner's conviction. At the hearing, no plausible explanation was offered for FDOT's failure to comply with the requirements of Subsection 287.133(3)(b), Florida Statutes (2000). In his questioning of Petitioner, the Department's counsel implied that it was merely standard practice for FDOT to wait until everyone involved in the case had been convicted before notifying the Department. Even if this implication is accepted, it does not bring FDOT's actions within the terms of the statute. The letter itself states that the individual Whites and White Construction Company entered into a plea agreement on July 7, 2004, and that FDOT's inspector general concluded all investigation in the matter on December 23, 2004. Both those dates are months before the March 15, 2005, letter from FDOT to the Department. As noted above, Subsection 287.133(3)(b), Florida Statutes (2000), required the agency to provide notice of the convictions to the Department within 10 days of receiving the information. At the hearing, Petitioner testified that he believed that FDOT intentionally dragged out these matters due to simple vindictiveness. Given the facts noted above, Petitioner's explanation is as plausible as any offered by the Department. By letter dated March 21, 2005, Mr. Rumph attempted to notify Petitioner that the Department had received information that he had been found guilty of a public entity crime and that the Department was commencing an investigation of the matter. Because the letter was sent to an old address and apparently not forwarded, Petitioner never received it. For reasons again unexplained, another year passed before the Department made any further effort to contact Petitioner. By certified letter dated April 6, 2006, the Department notified Petitioner of its intent to place him on the convicted vendor list. This letter was sent to the old address, but was forwarded to Petitioner's current address. Petitioner testified, both at this hearing and the hearing in DOAH Case No. 02-3167PL, that he was retained to provide cost evaluations and calculate cost damages based entirely on information provided to him by engineering firms hired by the attorneys for White Construction Company, as well as information provided by White Construction Company and FDOT. He made only brief visits to the job sites, was not allowed to question the calculations performed by the engineers, and had no knowledge that the information provided to him was untrue. Petitioner did not submit the claims that later proved fraudulent. Petitioner testified that he pled guilty "to make the trial go away and save me about $150,000 at that time." He did not concede that he had actually committed any crime. Petitioner's plea agreement provided that his total aggregate sentence would be ten years of probation, with the possibility of an early termination "upon proof by Defendant to the court's satisfaction that: (a) all restitution, fines, and costs have been paid; (b) Defendant has satisfied in full all other conditions of his probation; and (c) the interests of justice are best served by early termination of probation. The Defendant understands that the State will not agree to an early termination of probation any sooner than one-half of his probationary period." At the hearing, Petitioner testified that the order terminating his probation was entered on February 10, 2006, more than four years early. The early termination of probation leads to the reasonable inference that Petitioner complied with all the terms of his plea agreement, including the following: Defendant agrees, when directed by the State, to appear and testify truthfully and fully and to provide information truthfully and fully at all interviews, hearings, depositions, and trials involving the above- captioned case and any related investigations. Defendant agrees to provide all interview statements and testimony in all depositions, hearings and trials voluntarily. . . . Petitioner has performed no work for White Construction Company or any of its principals since March 2000. Petitioner has performed no work for any state agency since March 2000. On November 8, 2000, the Federal Highway Administration suspended Petitioner from participating in federally funded projects, based on the March 23, 2000, indictment. The suspension was imposed for the duration of the criminal proceedings. By letter dated April 11, 2005, the Federal Highway Administration notified Petitioner that his suspension had been terminated, due to the conclusion of the criminal proceedings.
The Issue The issue is whether the Respondent has failed to maintain good moral character.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards Training Commission as a correctional officer on March 21, 1985, and issued Certificate No. 04-85-599-01. At the time of the events which form the basis for the Administrative Complaint, the Respondent was employed as a correctional officer at the Marion Correctional Institution, a correctional facility of the State Department of Corrections. Marion County Sheriff's Deputies, David F. Faircloth, Jr. and Art King, are veteran law enforcement officers who have received training in the detection and recognition of controlled substances, to include marijuana. Both officers have made numerous arrests for the possession of a controlled substance which they suspected was marijuana and which, upon being tested, proved to be marijuana On June 9, 1990, while on regular patrol in Marion County, Florida, Deputy David F. Faircloth, Jr. was directed to investigate an anonymous report of a male and female who had been observed fighting in a white Camaro automobile parked on U.S. Highway 27. While in that vicinity in response to that request, Officer Faircloth responded to a complaint of a disturbance at 1261 N.W. 56th Court, Ocala, Florida. When Deputy Faircloth arrived on the scene, he noticed a white, two-door Camaro. Deputy Faircloth determined upon investigation that the Respondent and Linda Altman, who lived at the address, had engaged in an altercation involving their respective vehicles which were both damaged and parked in the front yard. Both the Respondent and Ms. Altman had been drinking and both were upset. Deputy King was dispatched as a backup and arrived at the Altman residence. Upon his arrival, Deputy King was briefed by Deputy Faircloth, who advised him that both the Respondent and Ms. Altman had been drinking, both were angry with one another, both had engaged in some altercation involving their vehicles which had caused damage to both vehicles, and both were correctional officers. Pursuant to their standard operating procedure, the deputies separated and interviewed separately the Respondent and Ms. Altman. Deputy King talked to the Respondent and Deputy Faircloth talked to Ms. Altman. Deputies Faircloth and King determined that the white Camaro parked at the location belonged to the Respondent. Deputy King stated that he intended to permit the Respondent to leave the scene; however, he was concerned that the Respondent, being a corrections officer, might have a weapon in his vehicle and return to cause more trouble. This testimony is logically inconsistent because if the Respondent had a gun and was released, he could retrieve the gun and return. However, it was on this basis Deputy King asked the Respondent if he could search his vehicle. The Respondent consented to the search of his vehicle by Deputy King. Officer King began his search of the vehicle in the front driver's seat. As Deputy King was leaning into the vehicle, conducting his search, the Respondent leaned over his back into the rear of the automobile and removed a shaving kit from the back seat. The Respondent's unanticipated action startled deputy King, who turned and inquired of the Respondent what he was doing. The Respondent, through words and gestures, indicated to Deputy King that he did not want him to search the shaving kit. The Respondent told Deputy King that there were no guns in the kit; but when Deputy King persisted in being permitted to search the kit, the Respondent indicated that he would open the kit and show Deputy King its contents. When the Respondent unzipped and opened the kit, Deputy King observed at the top of the kit a plastic bag containing dried vegetable matter which Deputy King thought to be marijuana. Deputy King seized as contraband the contents of the plastic bag, and upon administration of a field test for controlled substances, he determined that the substance was marijuana. Deputy King arrested the Respondent, and conducted a search of the Respondent's vehicle where he found a portion of a partially-smoked marijuana cigarette and a device which appeared to be some type of smoking device. The bag of marijuana which Deputy King seized from the Respondent's shaving kit was sent to the Florida Department of Law Enforcement crime laboratory for analysis. The crime laboratory concluded that the plastic bag contained 4.7 grams of cannabis or marijuana. One cannot determine from the report whether the burnt cigarette was tested and determined to be marijuana. Although Deputy King filed charges against the Respondent, the charges were later dismissed by the prosecutor for reasons unknown to Deputies King and Faircloth.
The Issue Whether the Petitioners have presented clear and convincing evidence that they are of good moral character so as to receive an exemption from disqualification from licensure as a family foster home, pursuant to Section 435.07(3), Florida Statutes (1997).
Findings Of Fact Hope Gadson (Case No. 98-2781) Hope Gadson (Petitioner) has an extensive criminal history beginning approximately 12 years ago. Under Florida law, she is considered a habitual offender. Beginning in 1986, her criminal record includes seven convictions for worthless checks and petit theft, three convictions for drug possession and sale, and at least two convictions for prostitution. Four of these convictions are disqualifying convictions. In 1992, 1993 and 1994, Petitioner was convicted on felony drug charges. She was also charged with two probation violations in the intervening period. Petitioner's last conviction in 1994 resulted in jail time to run concurrently with the 1993 case as a violation of probation. Petitioner was arrested August 1994 and remained in jail until December 1994 when she was placed on work release. In June 1995, Petitioner was placed on house arrest for approximately two months. As a condition of her confinement and also as a condition of her work release, Petitioner received drug treatment in jail. Petitioner attended Narcotics Anonymous (NA) meetings during the time she was on work release from December 1994 to March 1995. Petitioner also has a disqualifying conviction for prostitution in 1994. Petitioner had at least three other arrests for prostitution that she admitted to having committed. Petitioner denies one arrest that she stated was based on mistaken identity. Petitioner states that the prostitution charges are directly related to the drug charges. Prior to her time in jail, Petitioner's long-term drug abuse resulted in the termination of her parental rights on four of her children. Of the four children that presently live with her, only the youngest child has lived with her since birth. Four of the children were drug-dependent newborns, and as a result of this finding, were removed from her custody. Except for a short time that a court order was in place, Petitioner did not provide support for any of her children during that period. Recently, her sixteen-year-old daughter, and her nine- year-old son have moved back in with her and her husband. The sixteen-year-old has not lived with her since she was three or four years old and the nine year old has not lived with her since he was one year old. The nine-year-old remains under the protective supervision of the juvenile court. Since her release from house arrest, Petitioner has made a remarkable turnaround in her life. Petitioner has been living drug-free for over two years. She has taken responsibility for her life and assembled the duties of being a responsible wife and mother. Petitioner has been employed as a secretary at a company that went out of business; as a sales person for AT&T and Bell South Mobility; and as temporary service personnel. Petitioner is a high-school graduate and plans on returning to school at Orlando Vo-Tech to learn more about computers. Petitioner has been married to Roger Gadson since February 1996. They have one son by this marriage. Besides Petitioner's other three children, they also have the child of her sister living with them. Random drug tests are performed on Petitioner on a monthly basis because one of her own children and the child of her sister are under protective supervision. Petitioner did not provide proof of the results of the drug tests. Regarding drug treatment, Petitioner does not believe that addiction to drugs is an ongoing condition. She feels addiction is in your mind and can be overcome with determination and support. She has not continued to attend NA meetings since her release. John Anderson testified on behalf of Petitioner. He became her friend while she was on drugs. He used to check on Petitioner and counsel her to make a better life for herself. He states he has seen the good care she gives to the children in her case. Roger Gadson (Case No. 98-2780) Roger Gadson (Petitioner II) was disqualified for a conviction for Grand Theft in 1988 and a conviction for Dealing in Stolen Property in 1991. He was sentenced to three years probation and sixty days in jail for the 1988 conviction. Petitioner II served approximately two and one half years in prison for the 1991 conviction. In August 1994, Petitioner II was released from prison and placed on work release. Petitioner II also had several misdemeanor and DUI convictions dating back to 1983. He has not had any criminal charges placed against him since his release in 1994. Since his release from prison, Petitioner II has been employed at Central Auto Parts. The company was aware of his criminal record when they hired him. He has worked his way up to Systems Warehouse Manager. He was married in February 1996, to Hope Gadson and has one child from that marriage. He has two children from a prior marriage and pays child support for their care. John Anderson also testified on Petitioner II's behalf. Petitioner II has turned his life around and his been a responsible citizen, husband and father since 1994.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioners' request for exemption from disqualification for licensure as a family foster home be DENIED. DONE AND ENTERED this 8th day of December, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Roger Gadson Hope Gadson 2849 Mayer Street Orlando, Florida 32806 Eric D. Dunlap, Esquire Department of Children and Family Services Suite S-1106 400 West Robinson Street Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1992.
