The Issue The issue is whether Respondent, Simpro Homes, Inc., conducted business operations in the State of Florida without obtaining workers’ compensation coverage meeting the requirements of Chapter 440, Florida Statutes, and, if so, whether the penalty in the amount of $326,861.58, was properly assessed by Petitioner, State of Florida, Department of Financial Services, Division of Workers’ Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Insurers are required by law to report all workers’ compensation policies to Petitioner. Respondent is a corporation domiciled in Georgia. Respondent is engaged in the business of framing, which is a construction activity, pursuant to Chapter 440, Florida Statutes, and Florida Administrative Code Rule 69L-6. On August 10, 2005, Petitioner's investigator, Allen DiMaria, visited 4307 Edgewater Drive, Jacksonville, Florida, on a random site visit, and interviewed a number of workers at the work site. Mr. DiMaria documented his investigation in the narrative of his Initial Investigative Report. Based upon these field interviews, Petitioner determined that the workers were employed by Respondent. Mr. DiMaria asked the superintendent on site whether Respondent had provided him with a certificate of liability insurance indicating workers’ compensation coverage, and was informed that Respondent had provided one. Mr. DiMaria was subsequently provided with the Certificate of Insurance by the general contractor on the work site. Mr. DiMaria also obtained a copy of Respondent’s workers’ compensation insurance policy which had a policy period of October 30, 2004, to October 30, 2005. The policy and the information contained in the Certificate of Insurance were consistent. Subsequent to the site visit, Mr. DiMaria continued the investigation of Respondent utilizing the Department’s Compliance and Coverage Automated System (“CCAS”) database that contains information on all workers' compensation insurance policy information from the carrier to an insured, and determined that Respondent did not have a State of Florida workers' compensation insurance policy. Petitioner, which maintains a database of all workers’ compensation exemptions in the State of Florida, also did not find any current, valid exemptions for Respondent. The St. Paul Travelers insurance policy held by Respondent at the time of Petitioner's site visit on August 10, 2005, did not contain an endorsement which utilizes Florida class codes, rates, rules, and manuals that comply with Chapter 440, Florida Statutes, and the Florida Insurance Code, satisfy the standard. Specifically, the insurance policy did not have Florida listed as a covered state under Section 3A. There is also no evidence that Respondent secured Section 3C coverage for Florida. The premium was based on a rate that was not the Florida premium rate and on a class code that was not indicative of the actual work being performed by Respondent. The policy shows that Respondent was insured for operations under National Council on Compensation Insurance (NCCI) class code 5645 at a premium utilizing Georgia premium rates. Class code 5645 refers to framing of one- or two- family homes. Mr. DiMaria utilized class code 5651 in his review of Respondent because Respondent was framing a dwelling that consisted of more than a two-family dwelling, pursuant to Florida Administrative Code Rule 69L-6.021(1). On August 11, 2006, after consulting with his supervisor, Mr. DiMaria issued and served on Respondent a stop- work order and order of penalty assessment for failure to comply with the requirements of Chapter 440, Florida Statutes, and more specifically on the grounds that Respondent did not secure the payment of workers’ compensation based on Florida class codes, rates, rules, and manuals. Employers on job sites in Florida are required to keep business records that enable Respondent to determine whether the employer is in compliance with the workers' compensation law. Mr. DiMaria issued a request for production of business records to Respondent on August 11, 2006. The request asked the employer to produce, for the preceding three years, documents that reflected payroll and proof of insurance. Respondent produced check stubs for a number of employees who were not on the investigated work site, and an affidavit that stated the employees on the work site were performing framing work for Respondent. Respondent failed to produce the requested records for the employees working in Florida. Hans Prosser, Respondent's president, testified that he had provided the records to his attorney who was charged with reviewing the records and turning them over to Petitioner. Apparently, the attorney never delivered the records to Petitioner. Once Respondent failed to provide the requested information, Petitioner imputed the payroll of the employees and calculated a penalty for the time period of August 11, 2002, through August 11, 2005. Mr. DiMaria assigned a class code to the type of work performed by Respondent utilizing the SCOPES Manual, multiplied the class code’s assigned approved manual rate by the imputed payroll per one hundred dollars, and then multiplied that by 1.5. The payroll was imputed back to October 1, 2003. Pursuant to Florida Administrative Code Rule 69L-6.028(4), for the period prior to October 1, 2003, Petitioner assessed a penalty of $100 per day for each calendar day of noncompliance. The Amended Order of Penalty Assessment ("Amended Order") which assessed a penalty of $327,969.47, was served on Respondent on September 1, 2005. The Department issued and served a second Amended Order of Penalty Assessment (“Second Amended Order”) with an assessed penalty of $326,861.58, via a Motion to Amend Order of Penalty Assessment to Respondent on January 6, 2006. The reduction was the result of an error in the calculation of the penalty in the Amended Order. The motion was granted by this Administrative Law Judge on March 20, 2006. Respondent contends that it had been dissolved as a corporation on February 24, 2001, and was reinstated as a corporation on January 23, 2003, and thus should not be penalized for any time prior to that date. In support of this contention, Respondent offered into evidence a certified copy of a document entitled "Certificate of Reinstatement," demonstrating that Respondent had been administratively dissolved on February 24, 2001, "for failure to comply with the requirements of Title 14 of the Official Code of Georgia Annotated." The document further explains that all taxes have been paid and that Respondent "may resume its business as if the administrative dissolution had never occurred." This document was not presented to counsel for Petitioner prior to the final hearing as required by the Order of Pre-hearing Instructions issued in this matter.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Assessment Order assessing a penalty of $326,861.58. DONE AND ENTERED this 4th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2006. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Hans Prosser Simpro Homes, Inc. 5055 Old Winder Highway Braselton, Georgia Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues in this case are: (1) whether Respondent used a title that tended to indicate he was an active registered engineer in the State of Florida when he did not hold such registration; (2) whether Respondent violated an order previously issued by the Department; (3) and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Frank V. Burianek, earned a Master of Science Degree in Civil and Structural Engineering from the University of Bratislava. In 1967, when Respondent earned this degree, the University of Bratislava was located in Bratislava, Czechoslovakia. However, since that time, the country of Czechoslovakia was dissolved and divided to form two new countries. The country in which the City of Bratislava is now located is the Slovian Republic. Respondent has worked in the construction business for about 30 years. During this time, Respondent worked as an engineer in Africa and Europe. At all times relevant to this proceeding, Respondent resided in Pinellas County, Florida. After moving to the area, Respondent made inquiries concerning how he could become a licensed or registered engineer in the State of Florida. After considering the matter, however, Respondent decided that he would not pursue applying for and obtaining a license to practice engineering in the State of Florida. Instead, Respondent chose to become a home inspector. In Florida, there is no requirement that individuals who work as home inspectors be licensed. Moreover, neither the home inspection business, nor its employees, are regulated by the State of Florida. According to a flyer distributed by Respondent, he began conducting home inspections in the Pinellas County area in 1992. The flyer stated in relevant part the following: Hi, my name is Frank Burianek. I am a Civil and Structural Engineer. I have thirty years experience in the construction industry. I have been successfully completing Home Inspections in this area since 1992. You might have used me before, seen my marketing, or heard how I saved your colleague's deal. I want to offer you and your colleagues the best service, but I need your professional opinion . . . your advice. And here is where I need your help. You have obviously used a number of inspectors in the past and you can help me be the best one. Don't worry. I have never killed a deal. On the contrary. As there are few inspectors eagerly killing some deals, I have been called on a number of occasions for Engineer's re-inspection. On October 27, 1998, a letter of complaint, which included a copy of Respondent's flyer, was filed with the Department. The letter of complaint, which appeared to be from the president of a company located in Spring Hill, Florida, that provided construction inspections consultation, indicated that Respondent did not list his license number on the flyer. The Department assigned the complaint described in paragraph 6 above as DBPR Case No. 98-21925. In a letter from the Department, Respondent was advised that a complaint had been filed alleging that Respondent "acted in the capacity of an ENGINEER without being duly licensed, a business that requires licensure in the State of Florida." The letter further stated that "this unlicensed practice is a criminal offense for which [Respondent] may be criminally prosecuted." The Department's investigation of DBPR Case No. 98-21925 included reviewing Department records and Respondent's flyer and written response to the Department, interviewing Respondent, and conferring with Department staff. During the course of the investigation, Respondent's flyer was reviewed by the contract administrator for the engineering board. After the contract administrator completed her review of the flyer, she wrote an e-mail to the Department's investigator regarding recommended changes that could be made to Respondent's flyer to correct the problem raised in the complaint. The e-mail, dated January 8, 1999, stated in part the following: I've read the flyer. Suggest to Mr. Burianek that he change the second sentence to the following: "I hold a Master Degree in Civil & Structural Engineering from University." If it is a foreign university, listing the city, state and or country might be helpful too! The way it is currently written implies or "tends to indicate" that he holds an active registration as a licensed engineer when he does not. The e-mail described in paragraph 10 was referred to in the Department's Investigative Report of DBPR Case No. 98-21925. According to the Investigative Report, the engineering board's contract administrator recommended that Respondent "change the second sentence on the flyer and add credentials." During the investigation of DBPR Case No. 98-21925, Respondent indicated that he was a civil and structural engineer because he had a master's degree in that field from the University of Bratislava. Respondent also indicated to the investigator that he was working as a home inspector and never intended that the flyer indicate he was licensed or registered as a professional engineer by the State of Florida. Based on the custom and practice in Europe, as a result of Respondent's obtaining a graduate degree in civil and structural engineering, his title was engineer. On January 13, 1999, the Department issued a Notice to Cease and Desist in DBPR Case No. 98-21925. The Notice to Cease and Desist, which ordered Respondent to "Cease and Desist from the unlicensed and illegal practice of Engineering," provided in relevant part the following: You are hereby notified that the following specifically described conduct constitutes the unlicensed practice of contracting by yourself: * * * Advertising in the capacity of an Engineer without being duly licensed. Company advertisement indicates that SUBJECT is holding himself as a Civil and Structural Engineer without being licensed. Subject is in violation of F.S. 471.031(1)(a). You are hereby advised that under Chapter 471.031 of the Florida Statutes, only persons or firms licensed by the Florida Engineering Board may hold himself or advertise as an Engineer. * * * You are hereby ORDERED to immediately CEASE AND DESIST from the unlicensed practice of Engineering in the State of Florida. You are further notified that under Section 455.228, Florida Statutes, a fine of up to $5000 may be imposed on any person engaging in the unlicensed practice of Engineering. On or about January 13, 1999, Respondent met with Department staff regarding his flyer. At that meeting, Department staff advised Respondent that although he had a master's degree in civil and structural engineering, because he was not licensed or registered as a professional engineer in the State of Florida, he could not simply refer to himself as an engineer. Rather, he also had to indicate that he had a degree in civil and structural engineering and the name and location of the university where he obtained the degree. The flyer, which was the basis for the complaint in DBPR Case No. 98-21925, had stated only that Respondent was a civil and structural engineer, but made no mention of his educational credentials. However, based on the information the Department gave to Respondent, he modified his initial flyer to include the fact that he had a master's degree with distinction from the University of Bratislava in Europe. Additionally, in the modified version of the flyer, Respondent deleted the reference to his being called to conduct an "Engineer's re-inspection." Rather, the revised flyer stated that Respondent had been called on a number of occasions for a "re-inspection." In the revised flyer, Respondent made the following two changes: I am a Civil and Structural Engineer (Master's Degree with distinction from University of Bratislava - Europe). * * * As there are few inspectors eagerly killing some deals, I have been called on number of occasions for a re-inspection. On or about January 13, 1999, Respondent provided the Department with an affidavit and a copy of the revised flyer. In the affidavit, Respondent stated that he did not intend to deceive the public and had changed the flyer pursuant to the Department's instructions and recommendations. The revised flyer was reviewed and approved by the Department. On January 24, 1999, after the Department reviewed Respondent's affidavit and revised flyer, it issued a Closing Order. The Closing Order found that probable cause existed to believe that Respondent violated Chapter 471, Florida Statutes, and noted that the Department had issued a Notice to Cease and Desist to him. Finally, the Closing Order stated that because "the unlicensed activity" had ceased, the case would be closed without further prosecution. On or about June 8, 2000, the Florida Engineers Management Corporation received a complaint against Respondent. Included with the letter of complaint was a letter dated October 23, 1996, that appeared to be from Respondent to someone for whom he had performed an inspection. This complaint was written on stationery with the letterhead of Advanced Building Inspections, Inc., St. Petersburg, Florida. The complaint referred to in paragraph 21 stated that the October 23, 1996, letter attached thereto was documentation of a "past structural inspection." The complaint further alleged that Respondent, whose name appeared on the letterhead of the October 23, 1996, letter and who appeared to have signed the letter, was not in the Department's computer. The implication was that Respondent was not a registered or professional engineer in the State of Florida. The Department took no action against Respondent as a result of the allegations in the June 8, 2000, complaint. However, during the course of the Department's investigation of that complaint, the Department requested that Respondent provide a copy of his current business stationery and business card. On or about October 25, 2000, Respondent provided to the Department the documents it had requested as a part of its investigation of the June 2000 complaint filed against Respondent. In addition to sending the requested documents to the Department, Respondent also sent a letter which stated that the Department had advised him some time ago to "include the city/place of my university with my qualification." In referring to his letterhead and business card, Respondent wrote, "As you can see, I have complied with this request, whenever, I refer to my engineering degree." Finally, Respondent stated that his business cards were printed about eight years ago and that because he does not use them often, "instead of wasting the old ones and printing new ones," he had added the requested information by hand. The address, telephone and fax numbers, and e-mail address were inscribed on the letterhead of the stationery provided to the Department by Respondent. Also, inscribed on the letterhead just above this information was the following: Frank V. Burianek, MSC, MBA Civil and Structural Engineer (Bratislava) As requested, Respondent also provided the Department with one of his business cards. In the center of the business card, in all capital letters and in bold print was "HOME INSPECTION." In the lower left corner of the business card was the following: Frank Burianek MSC, MBA Civil and Structural Engineer (Bratislava) Respondent's name, educational degrees earned, and "Civil and Structural Engineer," were inscribed on Respondent's business card. "(Bratislava)" was hand-written just below the words, "Civil and Structural Engineer." Bratislava is the name of the university where Respondent earned his Master of Science Degree and the name of the city where the university is located. Because the name and location of the university were the same, rather than writing, "Bratislava, Bratislava," Respondent wrote only "Bratislava." Respondent had seen business cards of other individuals that had only included the name of the university where they had earned their degrees. Based on this and the Department's prior instructions, Respondent believed that the addition of "Bratislava" to his letterhead and business cards was acceptable, particularly in view of the fact that the name of the university and the city where it is located are identical. In the lower right-hand corner of the business card, Respondent's telephone number, including the area code of "813", was inscribed. On the business card, Respondent had crossed out the "813" area code and had written above it the new area code of "727." In the January 13, 1999, meeting with Department staff, Respondent was specifically advised how his flyer should be modified so as to avoid the perception that he was a professional engineer, licensed by the State of Florida. Based on Respondent's understanding of the Department's instructions given at that meeting and its approval of his revised flyer, Respondent reasonably believed that he could use the title, "Civil and Structural Engineer" because he had earned a degree in that area, if he included his educational credentials. In light of the Department's instructions and recommendations, Respondent revised the flyer. In that revised version, Respondent stated, "I am a Civil and Structural Engineer (Master's Degree with distinction, from University of Bratislava - Europe)." The Department approved this revised version of the flyer. The instructions and suggestions that the Department staff gave to Respondent in January 1999 specifically addressed the flyer that was the subject of the complaint filed in DBPR Case No. 98-21925. However, Respondent reasonably assumed that the substance of those instructions and/or recommendations should apply to his other business documents and advertisements. The language on Respondent's letterhead and business card complies with the instructions and recommendations given to him by the Department on or about January 13, 1999, and do not tend to indicate that Respondent is a registered engineer in the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, enter a final order that dismisses Counts One, Two, Three, and Four of the Administrative Complaint. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 18th day of May, 2001. COPIES FURNISHED: Frank V. Burianek Post Office Box 4563 Seminole, Florida 33775 David K. Minacci, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Doug Sunshine, Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
The Issue The issue in the case is whether Tracy Jean (Petitioner) was the subject of unlawful discrimination by Florida Hospital Medical Group (Respondent)1/ in violation of chapter 760, Florida Statutes (2015).2/
Findings Of Fact The Petitioner is a black female, who is qualified for employment as a Florida-licensed registered nurse (RN). The Respondent is an “employer” as defined by the Florida Civil Rights Act of 1992. At a job fair held on June 9, 2015, the Petitioner met representatives from the Respondent, including Tracy Decker, a manager, and Sarah Emerson, a nurse recruiter, and was interviewed by them in relation to potential employment. Ms. Emerson subsequently called the Petitioner to express an interest in hiring the Petitioner as an RN, and to encourage her to submit an application. On June 23, 2015, the Petitioner submitted an electronic employment application for a position as an RN at Florida Hospital. The Respondent’s online application form included questions calling for disclosure of an applicant’s criminal history. Although the Respondent does not automatically reject an applicant who discloses previous criminal activity, the failure to disclose such activity may be deemed by the Respondent to be a falsification of the information, and may disqualify an applicant from employment. The Respondent’s online application form states as follows: I understand that I will not be automatically disqualified from possible employment if, in response to application questions, I disclose criminal records information. I also understand that any false, misleading, incomplete or omitted information in response to application questions will result in ineligibility for employment or termination of employment as it will be deemed falsification of information. As a result, I hereby confirm that if I failed to disclose any criminal records information, it is because it is not required in response to the application’s questions (e.g., parking tickets) or it is because I am certain that the information has been expunged and thus, will not show up during a background check. Finally, I understand that my mistaken belief about whether the response is required or whether the information has been expunged is not a defense to falsification. Accordingly, if I erroneously omitted information, I will be ineligible for employment or my employment will be terminated for falsification. * * * Employment is subject to completion of pre- employment procedures, including but not limited to; verifying employment/personal references; conducting a background investigation/criminal record check; verifying driving record (if appropriate); and confirmation of licensure or registration. In relevant part, the Respondent’s online application form stated as follows: Have you served any of the following for any criminal offense? (check all that apply): pretrial diversion * * * probation (any type) * * * Any other type of alternative, deferred, suspended, postponed or conditional prosecution, adjudication, disposition, sentence, program or release not listed above, please describe: (if not, type N/A) The Petitioner’s response was “N/A” indicating that she had not served any type of punitive sentence or alternative disposition for a criminal offense. On July 19, 2015, the Respondent extended a written offer of employment to the Petitioner. The letter was issued by Erika Cardona-Geis, a recruiter for the Respondent. The offer was contingent on the completion of various requirements, including a background check. For the Respondent’s purposes, an acceptable background check is one that corresponds with the information disclosed on a potential employee’s application. The Respondent’s focus is on the truthfulness and integrity of potential employees, especially those such as RNs employed to provides services and medications to patients. The Respondent utilized a third-party vendor to perform background checks on potential employees. The Respondent provided the vendor’s website link to the Petitioner so that she could submit her information for the background check, and the Petitioner did so. On July 27, 2015, the Respondent received the results of the Petitioner’s background check from the vendor. The Petitioner’s background check revealed criminal activity that had not been disclosed by the Petitioner in her employment application. According to the background check, the Petitioner was charged with separate counts of Grand Theft, Obstruction of Fire Equipment, and Criminal Mischief on September 7, 2008, in Broward County, Florida (Case No. 08-021191CF10-A). The charges resulted in the Petitioner being placed on probation for 15 months and required to make restitution. Adjudication of guilt was withheld. The background check also revealed that the Petitioner was charged with solicitation to commit prostitution on August 16, 2010, in Miami-Dade County, Florida (Case No. B-10- 042025-B). The Petitioner entered a pre-trial diversion program, and the charge was nolle prossed. The Respondent’s formal policy provided that falsification of background check information in an employment application may result in an applicant being deemed ineligible for employment. Nonetheless, when an applicant’s background check revealed information other than that disclosed on an employment application, the Respondent’s standard procedure was to allow an applicant an opportunity to submit additional information to explain the discrepancy, so that the Respondent could assess the reason for nondisclosure rather than automatically reject the applicant. Because the Petitioner’s background check included information inconsistent with that submitted by the Petitioner in her employment application, Ms. Cardona-Geis contacted the Petitioner and offered her the option to submit a written statement regarding the discrepancies and to provide related court records. In response, the Petitioner submitted a letter of explanation dated July 28, 2015, and related court records, as well as a letter from the Florida Board of Nursing and a letter purportedly written by an attorney. Ms. Cardona-Geis provided the Petitioner’s response and materials to Karla Muniz, the Respondent’s human resources director. Ms. Cardona-Geis also provided the Petitioner’s response and materials to Lorraine Pitre, a lawyer and member in good standing of the Florida Bar, employed by the Respondent as an employee relations consultant. Ms. Pitre was responsible for providing counsel and advice to the management of the Respondent’s Human Relations Department. She was also directly involved in the creation of the Respondent’s human resource policies and practices, including those relevant to the Respondent’s consideration of the Petitioner’s employment application. Ms. Pitre was the Respondent’s employee specifically assigned to review matters involving employment background check discrepancies. Ms. Pitre reviewed the Petitioner’s letter of explanation, wherein the Petitioner stated, in relevant part, as follows: The charges were not disclosed because I sealed & expunged the cases. Under the advice of my attorney, he told me there was no need to disclose this information once I went through the expungement process. Ms. Pitre reviewed the court documents submitted by the Petitioner and publicly-available records accessible through the Broward County Clerk’s Office and determined that the Broward County charges that resulted in the Petitioner’s probationary sentence had not been sealed or expunged. Ms. Pitre also reviewed the letter submitted by the Petitioner and purportedly written by an attorney. The letter, dated August 4, 2015, stated as follows: The set forth individual has retained my services to expunge and seal the mentioned cases. I am not at liberty to disclose the information, but I am aware that my client has revealed her past indiscretions. The client, Tracy Jean, has honestly answered “no” to the set forth employment questions of convictions. Furthermore, my client informed me that she has submitted the appropriate documents and has revealed this information to you, which under Florida Statutes is not necessary. Tracy has honored all of your request [sic], has not knowingly lied on the application, and only wants to be looked at as a professional. The letter contradicted the Petitioner’s assertion that the charges had been expunged or sealed prior to the submission of her application for employment. Although the letter identified the writer as “Eric Volz, ESQ,” the letter was not printed on letterhead and was unsigned. Ms. Pitre, who routinely interacted with attorneys in private practice, was concerned about the authenticity of the letter. Ms. Pitre discussed her findings and concerns with Ms. Muniz and with Ms. Cardona-Geis. Based on the Respondent’s review of the Petitioner’s application, the background check information, and the materials subsequently submitted by the Petitioner, the Respondent determined that the Petitioner had submitted false responses to the criminal background history questions on the application. The Respondent revoked the conditional offer of employment previously extended to the Petitioner. There is no evidence that the Petitioner’s race was a consideration in the Respondent’s decision to revoke the conditional offer of employment.
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 dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 25th day of August, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 25th day of August, 2016.
Findings Of Fact On or about January 16, 1981, the Petitioner began regular employment with the Probation and Parole Services, Region IV, office of the Department of Corrections. He was hired as a "Probation and Parole Officer (Trainee)." On or about June 15, 1981, the Department advised Petitioner that he had been dismissed from his position with the Department. The dismissal was effective June 18, 1981. At that time, Petitioner had not yet attained permanent status in the Florida Career Service System. He was serving a probationary period. In the notice of dismissal, it was provided, as follows: This action is taken after careful consideration and discussion with your immediate supervisor concerning the following: The falsification of your employment application when applying for employment in the Miami Circuit Office of Probation and Parole Services. Your actions were in violation of Chapter 22A-4.03(2) of the rules of the Department of Administration of the Career Service System. This action is in accordance with the State of Florida Rules and Regulations of the Career Service System Chapter 22A-7.10(7)(H). Since you have been terminated during your trainee status, Chapter 22A- 7.03(4), Florida Personnel Rules and Regulations would apply. Petitioner thereafter filed his "Petition for Section 120.57(1) Formal Administrative Hearing" with the Department of Corrections. In his employment application, Petitioner stated that he had never been convicted of a felony or first degree misdemeanor. On January 10, 1971, Petitioner was convicted of municipal ordinance violations in the city of Pueblo, Colorado. The violations were misdemeanors. Petitioner was fined $50 for "disturbance," and $75 for "assault and battery." He paid the fine and served one-half day in the city jail. The Department contends that on account of these convictions, Petitioner's statement in his employment application was false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Corrections dismissing the petition for formal administrative hearing filed by Heriberto Roman Conti. RECOMMENDED this 10th day of March, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 10th day of March, 1983. COPIES FURNISHED: Sisinio Ortiz Valentin, Esquire Puerto Rico Legal Services Corp. Box 727 Guaynabo, Puerto Rico 00657 Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent failed to secure workers' compensation coverage as required by law, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner Department is the State Agency responsible for enforcing those portions of Chapter 440, Florida Statutes, requiring that employers secure payment of workers' compensation benefits for their employees. On November 6, 2006, Petitioner's Investigator Michael Robinson, conducted a random visit at the construction site of a new residence at 2631 Bluewave Drive, in Middleburg, Florida. At that time, he observed Respondent Keith Myer, installing metal framing for drywall installation.2/ This is a construction industry function. No evidence of current corporate status of Custom Interiors & Design, Inc., was presented at hearing. No evidence of the number of employees employed by the corporation was presented, either. There was no evidence to show which, if any, corporate officer Mr. Myer might be. The impression given at hearing by Respondent Myer was that he was the corporation's sole employee. At the jobsite on November 6, 2006, Mr. Myer told Mr. Robinson that he had secured the payment of workers' compensation through Staff Masters, which is a staffing company.3/ Mr. Myer was unable to provide Mr. Robinson with any documentation that would support Respondent's claim of having secured the payment of workers' compensation through Staff Masters. Mr. Myer presented no such evidence at hearing, either. Investigator Robinson utilized the Agency's Coverage and Compliance Automated System (CCAS) database that contains all policy information from workers' compensation insurance carriers to insureds, and determined that Respondent did not have any State of Florida workers' compensation insurance policy in force and effect on November 6, 2006. Mr. Myer presented no such policy at hearing, either. At all times material, 2000 through 2004, Section 440.05, Florida Statutes, has allowed a sole proprietor, partner, or corporate officer actively engaged in construction to apply for an exemption from workers' compensation benefits. From 2005 through 2006, only corporate officers could elect "out". Only the named individual on the application was exempt from carrying workers' compensation insurance coverage. Respondent Myer d/b/a Custom Interiors & Design, Inc., has no current valid workers' compensation exemption, but he had an exemption that had expired in September 2002. At all times material, 2000 through 2006, Sections 440.05(3) and 440.05(6), Florida Statutes, have limited the duration of construction workers' compensation exemptions to a period of two years. At the end of two years, the exemption automatically expires or terminates. Respondent Myer testified that he was not aware that his exemption had lapsed, even though the law states that a construction exemption has a duration of two years. Although Respondent denied receiving an expiration notification letter from the Agency, Investigator Robinson testified, and documents were admitted in evidence which show, that on or about June 19, 2002, the Agency sent a letter to Respondent Myer at his last known business address as shown on his exemption card, notifying him that his exemption was due to expire. The documents in evidence also suggest that Respondent or a similar name filed an incomplete exemption application in October 2002, but no witness's testimony addressed this issue. While the Agency's investigator was exploring all possible coverage of Respondent, Respondent was added to the payroll of the general contractor, Maronda Homes, which was on- site at the Bluewave Drive address, so that Respondent became covered by Maronda Homes' workers' compensation insurance policy. As a result, the Agency did not issue a stop-work order against Respondent. There is no evidence that Respondent Myer or Custom Interiors & Design, Inc., were sub-contractors for, or employees of, any general contractor at any date prior to November 9, 2006, so as to be covered by that general contractor's workers' compensation policy pursuant to Section 440.10, Florida Statutes. On November 20, 2006, Investigator Robinson served Respondent with a "Request for Production of Business Records for Penalty Assessment Calculation," seeking copies of business records for a period of three years, pursuant to Section 440.107(7)(d)1., Florida Statutes. This was for the purpose of determining whether Respondent had secured workers' compensation coverage, whether he or his employees had current valid workers' compensation exemptions, and to determine any civil penalties that might be owed for failing to secure the payment of workers' compensation. At the time the records request was issued, Florida Administrative Code Rule 69L-6.015, stated, in relevant part: In order for the Division to determine that an employer is in compliance with the provisions of Chapter 440, F.W., every business entity conducting business within the state of Florida shall maintain for the immediately preceding three year period true and accurate records. Such business records shall include original documentation of the following, or copies, when originals are not in the possession of or under the control of the business entity: All workers' compensation insurance policies of the business entity, and all endorsements, notices of cancellation, nonrenewal, or reinstatement of such policies. * * * Records indicating for every pay period a description of work performed and amount of pay or description of other remuneration paid or owed to each person by the business entity, such as time sheets, time cards, attendance records, earnings records, payroll summaries, payroll journals, ledgers or registers, daily logs or schedules, time and materials listings. All contracts entered into with a professional employer organization (PEO) or employee leasing company, temporary labor company, payroll or business record keeping company. If such services are not pursuant to a written contract, written documentation including the name, business address, telephone number, and FEIN or social security number of all principals if an FEIN is not held, of each such PEO, temporary labor company, payroll or business record keeping company; and For every contract with a PEO: a payroll ledger for each day period during the contract period identifying each worker by name, address, home telephone number, and social security number or documentation showing that the worker was eligible for employment in the United States during the contract for his/her services, and a description of work performed during each pay period by each worker, and the amount paid each pay period to each worker. A business entity may maintain such records or contract for their maintenance by the PEO to which the records pertain. * * * All check ledgers and bank statements for checking, savings, credit union, or any other bank accounts established by the business entity or on its behalf; and All federal income tax forms prepared by or on behalf of the business and all State of Florida, Division of Unemployment Compensation UCT-6 forms and any other forms or reports prepared by the business or on its behalf for filing with the Florida Division of Unemployment Compensation. In response to the records request, Respondent provided only W-2 forms for 2003 through 2005, and duplicate checks for 2006. The W-2 forms show the "employer" as Customer Interiors & Design, Inc., and Keith Myer as an "employee." Each of the checks shows the payor as "Custom Interiors & Design, Inc., Keith Myer, Angela Myer," and shows the payee as "Keith Myer." According to the W-2 forms, Respondent Myer's personal gross income from Custom Interiors & Design, Inc., in calendar year 2003 was $13,250.00; in calendar year 2004 was $16,500.00, and in calendar year 2005 was $34,625.00. Using these W-2 forms and checks, the Agency investigator calculated a gross payroll from the period November 9, 2003 to December 31, 2004, as $17,604.17; for January 1, 2005 to December 31, 2005, as $34,625.00; and for January 1, 2006 to November 9, 2006, as $14,600.00. Based on Respondent's materials, Investigator Robinson calculated a penalty for the three-year time period of November 6, 2003, through November 6, 2006. In calculating the penalty, he assigned Class Code 5445, to the framing work performed by Respondent utilizing the SCOPES Manual; multiplied the class code's assigned approved manual rate with the payroll per one hundred dollars, and then multiplied all by 1.5. The approved manual rate for Class Code 5445 fluctuated from year to year, and Mr. Robinson's penalty worksheet reflected such fluctuations. After several tries, the Order of Penalty Assessment, which assessed a penalty of $18,937.37, was served on Respondent by certified mail on March 1, 2007. Respondent Myer did not dispute any of the formulas or mathematics employed. He did not challenge his "employee" status. He only asserted that the penalty is excessively high for an honest mistake.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation enter a final order approving the penalty of $18,937.37 against Respondent. DONE AND ENTERED this 28th day of September, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 28th day of September, 2007.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is a state government licensing and regulatory agency charged, inter alia, with the duty and responsibility to regulate the practice of community association management pursuant to the provisions of Sections 455.01 through 455.275, and Sections 468.431 through 468.431, Florida Statutes. Respondent, Hasnain Mehdi Hanif, is a licensed community association manager in the State of Florida, having been issued license number CAM 0020664. On or about March 26, 1997, Respondent filed an application (dated March 5, 1997) with the Department for licensure as a community association manager. Pertinent to this case, item (17)(c)2 on the application required that Respondent answer yes or no to the following question: 2. Have you ever been convicted or been found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( )* This question applies to any violation of the laws of any state, territory or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. *If the answer is yes, you must provide the following information [date of offense, date of arrest, date of disposition, case number, charge, city, state, country, degree of felony or misdemeanor, plea, and disposition] for each offense and submit the following documents, as applicable: police arrest affidavit (need not be a certified true copy); the charges (a certified true copy); and plea, judgment and sentence (certified true copies). Attach separate sheets of paper using the same format or copy and complete this page if you have more than one offense. . . . Respondent responded to the question by checking the box marked "No." The application concluded with the applicant's signature immediately below the following affirmation: I hereby certify that all of the information provided in connection with this application is true and correct to the best of my knowledge and belief. Consistent with the requirement imposed by Subsection 468.433(1), Florida Statutes, Respondent included a complete set of fingerprints taken by an authorized law enforcement officer with his application. The fingerprint card identified Respondent, Hanif Hasnain Mehdi, as male, Asian, 5' 4" tall, 165 pounds, brown eyes, black hair, Social Security number 589-48-1476, and born in Bangladesh on October 16, 1966. Following the mandate of Subsection 468.433(1), Florida Statutes, the Department submitted the fingerprint card to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation (FBI) for federal processing. On June 23, 1997, the Department received a report from the FBI which revealed that, based on fingerprint comparisons, Respondent had failed to disclose a criminal history on his application. Specifically, the report revealed that Respondent failed to reveal that he was arrested on August 11, 1988, in Miami, Florida, on a charge of passport fraud, and that he had been convicted on November 17, 1988, of uttering a false statement in applying for a passport. By letter of July 16, 1997, the Department advised Respondent that, given the criminal history received from the FBI, his application was deficient, and requested that he furnish documentation pertinent to the incident reported by the FBI, as well as an explanation of why the incident was not disclosed on his application. The Respondent replied by letter of July 23, 1997, as follows: The undersigned asserts that he was never arrested and never charged with any crime; therefore, there was no reason to enclose any explanation. The undersigned is also waiving the 90-day time requirement for approval and denial of the application, but expects that as soon as a definite determination is made, the applicant is scheduled for the test. The undersigned sincerely expects the Department and the concerned agencies to check their records for accuracy. As far as the applicant is concerned, there is no reason why the Department of Business and Professional Regulation should not process his application. (Emphasis in original.) In August 1997, the Department made its first request that the Clerk, United States District Court, Southern District of Florida, provide it with certified copies of the documents related to the criminal matter referenced in the FBI report. That request, as well as numerous subsequent requests, proved fruitless, since the Clerk experienced difficulty in retrieving or locating the records (which had apparently been archived), until on or about August 7, 1998, when certified copies of the records were ultimately provided. In the interim, the Respondent (by letter of April 13, 1998) essentially withdrew his waiver and demanded that his application be processed. In response, the Department (not being in receipt of any official documentation regarding the offense) processed Respondent's application and on May 28, 1998, following successful completion of the licensure examination, issued Respondent a community association manager license. Notwithstanding, the Department continued to pursue documentation related to the incident reflected by the FBI report.1 Ultimately, in August 1998, the Department received the documentation from the Clerk, United States District Court, Southern District of Florida. Those records revealed that Respondent was arrested on August 11, 1988, and charged by a three-count Indictment2 in the United States District Court, Southern District of Florida, Case No. 88-0576 CR-NESBITT, as follows: Count I On or about August 1, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant, HASNAIN MEHDI HANIF, in a matter with the jurisdiction of the United State Department of State, a department of the United States, did knowingly and willfully make and use false writings and documents knowing the same to contain false, fictitious, and fraudulent statements and entries to wit, a Baptismal Certificate from the Diocese of Wichita #B5135, and a letter from defendant's mother stating he was a United States citizen, when in truth and in fact, and as the defendant then and there well knew, he was not baptized in Wichita, Kansas, and he was not a United States citizen; in violation of Title 18, United States Code, Section 1001. Count II On or about June 27, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant, HASNAIN MEHDI HANIF, an alien, did falsely and willfully represent himself to be a citizen of the United States, in that he stated he was born in Wichita, Kansas, in violation of Title 18, United States Code, Section 911. Count III On or about June 27, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant, HASNAIN MEHDI HANIF, did knowingly and willfully make a false statement in an application for a passport with the intent to induce and secure the issuance of a passport under the authority of the United Stated, for his own use, contrary to the laws regulating the issuance of passports and the rules prescribed pursuant to such laws, in that the defendant stated in the application that he was born in Wichita, Kansas, when in truth and in fact, and as the defendant then and there well knew, he was not born in Wichita, Kansas, in violation of Title 18, United Stated Code, Section 1452. The information of record in the criminal case describes the Defendant, Hasnain Mehdi Hanif, as male, 5' 4" tall, 135 pounds, brown eyes, black hair, Social Security number 589-48-1476, and born in Bangladesh on October 16, 1966. Moreover, the Defendant there, Respondent here, were shown to possess identical home phone numbers (305-754-0008); their signatures were in all aspects similar; and their appearances, as evidenced by photographs, were (but for the passage of 10 years and a weight gain of 30 pounds) similar. In all, it cannot be subject to serious debate that the Defendant named in the criminal case and the Respondent in this case are the same person. The Respondent and the United States of America (Government) entered into a plea agreement pursuant to which Respondent agreed to plead guilty to Count III of the Indictment and the Government would dismiss the remaining counts. Subsequently, Respondent entered a plea of guilty to Count III, and was found guilty of such offense (making a false statement in obtaining a U.S. Passport). The judgment of the court was, as follows: IT IS THE JUDGMENT OF THIS COURT THAT: the defendant is hereby committed to the custody of the Attorney General of the United States or his authorized representative for confinement for a period of five (5) years and a fine of $1,000.00. IT IS FURTHER ADJUDGED that the execution of said sentence of confinement is hereby suspended and the defendant is placed on probation for a period of two (2) years. IT IS FURTHER ORDERED as a special condition of probation, that if deported, the defendant shall not re-enter the Untied States without the permission of the Attorney General. Counts I and II of the Indictment were dismissed on the motion of the Government. Following receipt of the documentation regarding the criminal conviction, the Department filed the Administrative Complaint at issue in this proceeding which, as amended, charged that Respondent violated Section 455.227(1)(h), Florida Statutes, by obtaining a license by fraudulent misrepresentation; Section 468.436(1)(b)4, Florida Statutes, by obtaining a license by means of fraud, misrepresentation, or concealment of material facts; Rule 61-20.001(4), Florida Administrative Code, and, therefore, Section 468.436(1)(b)2, Florida Statutes, by having failed to provide the Department with documentation regarding his criminal record; and Section 468.436(1)(b)3, Florida Statutes, by being convicted of a felony in any court in the United States. At hearing, the Department offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $1,344.94, as of February 24, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered as follows: Finding the Respondent guilty of violating Sections 455.227(1)(h) and 468.436(1)(b)2, 3, and 4, Florida Statutes, as alleged in Counts I through IV of the Amended Administrative Complaint; Requiring that Respondent pay an administrative fine of $5,000.00; Revoking the Respondent's community association manager license number CAM 0020664; and Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,344.94. It is further RECOMMENDED that, if the foregoing recommendation is adopted, the Department refer a copy of the record in this case to the State Attorney, Dade County, Florida, for that office to resolve whether the record herein (Respondent's testimony at hearing and affirmation to the Department) supports a charge of perjury against Respondent. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1999.
Findings Of Fact Mr. Myers is, and has been at all times relevant to this proceeding, an employee of the Department with permanent status in the Career Service System. Mr. Myers is a member of the Florida Public Employees Council 79, an affiliate of the American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter referred to as "AFSCME"). AFSCME is the bargaining unit for those State employees who are members. AFSCME has entered into a Master Contract with the State of Florida. The Master Contract, which is effective from July 1, 1987 through June 30, 1990, established certain requirements for the treatment of AFSCME members by State employers. The Master Contract applied to Mr. Myers. Since March 2, 1987, Mr. Myers has been employed as an Insurance Specialist III (or similar title) within the Department's Bureau of State Liability Claims (hereinafter referred to as the "Bureau"). The Bureau is part of the Department's Division of Risk Management. Mr. Myers has received satisfactory evaluations while employed by the Department. Mr. Myers has not been subjected to any formal disciplinary action, i.e. oral or written reprimand, suspension, while employed by the Department. The Bureau is responsible for processing and disposing of claims against various agencies of the State of Florida. During 1987 or 1988 the Bureau was organized into two components, a "North" and a "South" group. Each group was supervised by an Administrator C. The two Administrator C's were supervised by Ms. Trilly Lester, the Chief of the Bureau. Ms. Lester has been the Chief of the Bureau since May, 1988. Ms. Lester received a B.A. degree in history with a minor in government from Florida State University. Ms. Lester has been a supervisor for more than eleven years. Each group within the Bureau consisted of an Administrator C, five insurance specialist III's, a secretary specialist, a claims processor and clerk typist specialists. Mr. Myers was assigned to the North group. Lewis "Ray" Williams was the Administrator C of this group. Mr. Williams was Mr. Myers' immediate supervisor at all times relevant to this proceeding. At times Mr. Williams has been critical of Mr. Myers' work and has attempted to inform Mr. Myers how he expects Mr. Myers to perform his duties. Mr. Williams' criticism of Mr. Myers has not been well received by Mr. Myers. A great deal of friction has arisen between Mr. Williams and Mr. Myers. Mr. Myers has, and still does, harbor a great deal of resentment and anger over the way Mr. Williams has supervised his work. During the late summer or early fall of 1988 Mr. Williams reviewed a written document prepared by Mr. Myers. As a result of criticisms of the document by Mr. Williams, the document had to be retyped on more than one occasion. Mr. Myers did not believe the criticisms were justified and filed a grievance concerning Mr. Williams because he believed that Mr. Williams was harassing him and his typist about the document. An "oral step grievance" was held at Mr. Myers' request on September 23, 1988. An "oral step grievance" is the first step required by the AFSCME Master Contract for processing grievances filed by State employees who are members of AFSCME. The September 23, 1988, conference was held in a vacant office in the building where the Department was then located. The conference was attended by Mr. Myers, Helen Burgess, a staff representative of AFSCME, Ms. Lester and Mr. Williams. During the September 23, 1988, conference Mr. Myers was angry about what he believed was Mr. Williams' mistreatment. Mr. Myers' face became ashen and his mouth was dry during the conference. Mr. Myers was visibly upset and angry. During the September 23, 1988, conference, Mr. Myers was "emotionally upset". At least four times during his testimony in this case Mr. Myers stated that he had been "emotionally upset" during the September 23, 1988. During the September 23, 1988, conference Mr. Myers stated that it was hard for him to concentrate on his work because he sat at his desk "boiling." Mr. Myers also stated that if Mr. Williams did not "back off" and stop criticizing his work, he did not know what he might do; after all, he was only human. (These statements will hereinafter be referred to as the "Comments"). The evidence concerning whether Mr. Myers made the Comments was not consistent. The weight of the evidence, however, supports a finding that Mr. Myers made the Comments. Both Ms. Lester and Mr. Williams remembered the Comments being made. Mr. Williams took notes during the oral step grievance meeting and, at the end of the meeting, wrote the following summary concerning his notes about the Comments: After rec'g criticism from Mr. W he became so upset he could not conc on his work as he sat at his desk "boiling" If Mr. W does not "back off" and stop criticizing his work, he did not know what he might do - after all he was only human See the last page of Respondent's exhibit 8. Mr. Williams' summary of the Comments was made immediately after the oral step grievance meeting and was based upon notes made by Mr. Williams at the same time that Mr. Myers made the Comments. Mr. Myers testified that he did not use the term "boiling" or say that he did not know what would happen. Mr. Myers' testimony concerning whether he made the Comments is not, however, credible because his testimony is inconsistent with the following: (1) Ms. Lester's and Mr. Williams' recollection of what was said; (2) the notes taken during the meeting by Mr. Williams; (3) the fact that Ms. Lester repeated the Comments on several occasions immediately after the Comments were made; (4) the fact that Mr. Myers did not deny making the Comments at a meeting with Ms. Lester and Mr. Williams on October 10, 1988; (5) the fact that Mr. Myers did not deny making the Comments in a memorandum from Mr. Myers of October 11, 1988, and a message Mr. Myers wrote to Ms. Lester on October 12, 1988; and (6) the fact that Mr. Myers stated during a meeting held after October 10, 1988, that he simply did not remember whether he had used the term "boiling" and stated that his comment about not knowing what he might do was simply not complete because he had ended it by saying "if Mr. Williams comes and has a confrontation with me." The Comments were not shouted by Mr. Myers. They were made in a normal tone. Mr. Myers was, however, emotionally upset and he admitted at the formal hearing that the tone or volume of his voice during the September 23, 1988, conference was "a little bit above average." Line 9, Page 95 of the Transcript. Mr. Myers also admitted the following during the formal hearing: A I felt that I was being provoked, and I am a human person. And sometimes when some people want to press on something again and again, you get worked up, and I was worked up. Lines 19-22, Page 93 of the Transcript. Based upon Mr. Myers' Comments, Ms. Lester and Mr. Williams believed that Mr. Myers was bitter toward his work environment and that his bitterness was affecting his ability to be an effective employee. They also believed that Mr. Myers' comment about not knowing what he might do was a threat. Ms. Lester's and Mr. Williams' concern about Mr. Myers' attitude during September, 1988, and their interpretation of the Comments was reasonable. The nature of the Comments and the manner in which they were made support this conclusion. Additionally, Mr. Myers made the following statements in a letter dated September 23, 1988, which support Ms. Lester's and Mr. Williams' concern: As a condition to resolve this grievance I will accept a transfer over to Southern region under Charles Paintor. I will not accept any direction or supervision from Ray Williams after this transfer is made. In the interim I request that Ray Williams and I have no personal or oral contact. Material should pass through our secretaries or through you the Bureau [sic] Chief. Respondent's exhibit 4. Mr. Myers was no longer willing to even deal directly with his immediate supervisor in a strictly professional capacity. Mr. Myers' difficulty with Mr. Williams was also evidenced by the fact that he filed four grievances with the Department, all of which were either filed specifically against Mr. Williams or involved Mr. Williams' supervision of Mr. Myers. Three of the grievances were decided in favor of the Department and the fourth was withdrawn by Mr. Myers. Ms. Lester was concerned about the Comments and believed that steps needed to be taken to diffuse Mr. Myers' bitterness. Therefore, Ms. Lester spoke to Lynn Dickinson, the Division Director, about the Comments. Ms. Dickinson suggested that Ms. Lester speak to Rene Ash, a senior personnel manager in the Department's personnel office. Ms. Lester spoke with Ms. Ash a few days after the September 23, 1988, conference. Ms. Lester told Ms. Ash that Mr. Myers had made the Comments and expressed her concern that Mr. Myers' bitterness needed to be diffused. Ms. Ash agreed and suggested that Ms. Lester suggest to Mr. Myers that he consider using the Department's Employee Assistance Program (hereinafter referred to as the "EAP"). Ms. Ash is the coordinator of the Department's EAP. The purpose of the Department's EAP was described by Ms. Ash as follows: A The purpose of the program is to assist employees who may be experiencing work-related problems, which may be caused by emotional problems, financial, drug, alcoholism. . . . Lines 13-17, Page 122 of the Transcript. The EAP is not a disciplinary program. Participation in the EAP is strictly voluntary. All records concerning an employee's participation in the EAP are treated by the Department as confidential. Documentation concerning participation in the EAP is maintained in a confidential file, separate from an employee's official personnel file. The Department does not keep offers of the availability of the EAP to employees confidential. If participation in the EAP is suggested to an employee during a counseling session, the Department's policy is to document the EAP offer. On October 10, 1988, Ms. Lester met with Mr. Myers to discuss the Comments, to inform Mr. Myers of the availability of the EAP and to discuss the role of the Bureau's clerk typist and insurance specialists. Mr. Williams also attended the October 10, 1988, meeting. The October 10, 1988, meeting was considered a "counseling session" by Ms. Lester and the Department. It was not, however, a formal disciplinary meeting. During the October 10, 1988, meeting, Ms. Lester indicated her concern over the fact that Mr. Myers had made the Comments during the September 23, 1988, conference, repeated the Comments and offered to assist Mr. Myers to coordinate with the EAP in an effort to diffuse his bitterness. Ms. Lester offered her assistance to Mr. Myers to coordinate his participation in the EAP in order to assist Mr. Myers with his bitterness toward Mr. Williams and the apparent affect his bitterness was having on his work. Ms. Lester did not take the actions she took because she bore Mr. Myers any personal animosity. At the October 10, 1988, meeting, Mr. Myers did not deny making the Comments. Mr. Myers merely informed Ms. Lester that he was in control of his emotions and did not believe that his participation in the EAP was necessary. On October 11, 1988, Ms. Lester prepared a memorandum (hereinafter referred to as the "Memorandum") memorializing the October 10, 1988, meeting. The contents of the Memorandum are correct and trustworthy. Ms. Lester accurately reflected the events described in the Memorandum. A copy of the Memorandum was sent to the Department's personnel office before it was provided to Mr. Myers. Ms. Ash reviewed and approved the Memorandum. A copy of the Memorandum was provided to Mr. Myers. It is the Department's policy to document counseling sessions and to file a copy of such documentation in the employee's personnel file. It was reasonable for the Department to document reasonable actions it takes in the management of Department employees. Consistent with the Department's policy of documenting offers to employees concerning the availability of the EAP, a copy of the Memorandum was filed in Mr. Myers' personnel file. The Memorandum includes the following statement: I also discussed with you my concern over some remarks you made concerning your feelings during your recent Oral Step conference. Specifically you had stated that you were emotionally upset and sat in your office "boiling". Also that you were only human and did not know what might happen. I expressed my concern to you over what I perceive as a bitter attitude toward your work and work environment. I offered my assistance to you in coordinating with the Employee Assistance Program to perhaps diffuse your feelings. You advised this was not necessary. Marlin, should you change your mind, please let me know. Joint exhibit 1. Ms. Lester's actions in this matter were consistent with Department policies and procedures concerning participation in the EAP. The Department failed to adequately explicate why documentation concerning participation in the EAP by an employee should be confidential but a direct suggestion to an individual employee that he or she should consider participating in the EAP should be documented and not kept confidential. The weight of the evidence failed to prove that a direct suggestion to an individual employee that he or she should participate in the EAP should be treated differently than actual participation in the program. Prospective employers with whom Mr. Myers may seek employment may review Mr. Myers' personnel file, and may, therefore, read the Memorandum. The weight of the evidence failed to prove, however, that the Memorandum will have any adverse affect on Mr. Myers. No competent substantial evidence proved how prospective employers would view a suggestion that Mr. Myers participate in the EAP. Additionally, the weight of the evidence failed to prove that the information in the Memorandum is so inflammatory or untrue that prospective employees should not be informed of the actions described in the Memorandum. Article 12 of the AFSCME Master Contract provides the following: There shall be only one official personnel file for each employee, which shall be maintained in the central personnel office of the employing agency unless a different location is approved by the Secretary of the Department of Administration or his designee. Duplicate personnel files may be established and maintained within an agency. Such duplicate personnel files may contain part or all of the items filed in the official personnel file, but may not contain any items which are not filed in the official personnel file. Information in an employee's official personnel file shall only refer to matters concerning (affecting) the employee's job or related to his State employment. If any derogatory material is placed in an employee's official personnel file, a copy will be sent to the employee. The employee will have the right to answer any such material filed, and his answer will be attached to the file copy. An employee will have the right to review his own official personnel file and any duplicate personnel files at reasonable times under the supervision of the designated records custodian. Where the Agency Head or his designee, the State Labor Relations Director, the Public Employees Relations Commission, the courts, an arbitrator, or other statutory authority determines that a document has been placed in an employee's personnel file in error, or is otherwise invalid, such document will be placed in an envelope together with a letter of explanation. The envelope shall be sealed, stamped "NOT VALID" and returned to the employee's personnel file. Provided, however, that nothing in this provision shall grant any official, officer, or other person the authority to take any action not otherwise authorized.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Mr. Myers' request that the October 11, 1988, memorandum be removed from his State of Florida personnel file and dismissing Mr. Myers' Petition with prejudice. DONE and ENTERED this 4th day of November, 1990, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Myers' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 3. Hereby accepted. 3 4-5. 4 30, 35 and 38. 5 13, 32, 35 and 39. 6 14-18, 32, 35 and 39. The third sentence is not supported by the weight of the evidence. Although the last five sentences of the first paragraph, all of the second paragraph and all of the fourth paragraph of proposed finding of fact 6 are correct, they are not relevant to this proceeding. The last two paragraphs of proposed finding of fact 6 are not supported by the weight of the evidence. 7 See 42. 8-10 Although generally true, these proposed findings of fact are not relevant. 11-12 28. See 41. Conclusion of law. Not supported by the weight of the evidence. Not supported by the weight of the evidence or not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3. 2 10. 3 7-8. 13-18. The next to the last sentence of the first sentence of these proposed findings of fact is not supported by the weight of the evidence. The first paragraph is hereby accepted. The second paragraph is not relevant to this proceeding. Not supported by the weight of the evidence or not relevant to this proceeding. 7 22. Although generally true, this paragraph is argument. 20-21. The last two sentences are not supported by the weight of the evidence. 10 33. 11 40. 12 23-24. 13 35 and 38. Hereby accepted. Not relevant to this proceeding. 16 26-27. 17 29 and 38. But see 41. 18 36. 19-20 43. 21-22 See 42. 23 28. Copies Furnished To: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Dennis Silverman, Esquire Division of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, the Respondent, Robert R. Sylvester, was certified as a law enforcement officer by the Florida Criminal Justice Standards and Training Commission. Respondent was issued certificate number 02-14567 on August 29, 1975. At the time of the hearing in this matter, Respondent was forty-six years old. Prior to becoming a police officer, Respondent was honorably discharged from the Marine Corps after three years of service and after achieving the rank of sergeant. Respondent's unblemished record of service in the Marine Corps included twenty-three months of active duty in Viet Nam and assignment to the security forces responsible for guarding the Presidents of the United States and South Viet Nam. Respondent began working with the Delray Beach Police Department ("DBPD") in 1975. At some point in 1979, the Delray Beach Police Department hired a new police chief. As discussed in more detail below, Respondent had a long feud with the new police chief beginning in approximately mid-1980 There is no evidence of any problems with Respondent's job performance at the DBPD or any dissatisfaction with his work until April or May of 1980, when Respondent and another officer were accused of using excessive force in the arrest of a shoplifter. Respondent was in line for a promotion prior to the complaint being lodged against him. The allegations against Respondent received wide publicity and, apparently as a result, Respondent was not promoted. After an investigation, the Chief of Police recommended that Respondent receive a thirty-day suspension without pay for the use of excessive force. Respondent contested the results of the investigation and was exonerated by the police department's five-man review board and by a grand jury. A federal civil rights investigation also found no basis for the charges against Respondent. Despite these findings, the City Manager imposed a 5-day suspension on Respondent. Under the existing Civil Service Rules, Respondent could not appeal that ruling. Respondent brought a civil action against the City Manager and the Chief of Police alleging that their actions in disciplining him violated his statutory, contractual and constitutional rights. A jury returned a verdict in favor of Respondent and awarded him $75,000 in compensatory damages and $25,000 in punitive damages. Respondent's lawsuit was appealed all the way to the Florida Supreme Court and was tied up in the courts for more than ten years. The suit was still not completely resolved at the time of the hearing in this case. During this entire time, Respondent continued to work for the DBPD. At the time of the hearing in this matter, Respondent was still a patrolman. Respondent has been passed over for promotion several times while his lawsuit has been pending against the Police Chief. He contends that throughout this period he has received unfavorable assignments and has been harassed by his supervisors. During this same time period, Respondent also became active in the police union serving as a bargaining agent and later as the president of the local organization. As a result of these matters, Respondent claims that his actions were very closely scrutinized by the DBPD and, consequently, he scrupulously tried to avoid even the appearance of impropriety in all of his actions. On November 13, 1989, the DBPD sought to terminate Respondent from employment alleging that he had improperly disseminated criminal history records and phone rosters of Delray Beach police officers to a private investigator named Virginia Snyder and/or her associate, Donald Pierce. Virginia Snyder was a former newspaper reporter in Delray Beach who subsequently started a business as a private investigator. She was a long-time and very vocal public critic of the DBPD and its chief. Donald Pierce was a former Delray Beach police officer who resigned from the police department and became a private investigator. He was associated on a part-time basis with Virginia Snyder's investigative agency. Respondent and Pierce served together as officers of the local police union. After he quit the DBPD, Pierce remained active in union affairs. Respondent successfully challenged his dismissal in a labor arbitration proceeding. He similarly prevailed in two separate unemployment compensation hearings. The only witness who claimed direct knowledge that Respondent provided confidential documents to Virginia Snyder and/or Donald Pierce was Nancy Adams. No other witness testified in this proceeding or in Respondent's labor arbitration or unemployment hearings that Respondent improperly delivered confidential documents. Respondent, Virginia Snyder and Donald Price have all disputed Ms. Adams testimony. Thus, this case boils down to whether Nancy Adams' testimony should be accepted. Nancy Adams began working for Virginia Snyder as a volunteer in Ms. Snyder's office beginning in approximately mid-May 1989. The circumstances under which Ms. Adams began working at Ms. Snyder's office are somewhat curious. Ms. Adams called Ms. Snyder inquiring about bodyguard or protective services which Ms. Snyder told her were not the types of services offered by the company. Ms. Adams then indicated that she was interested in learning the private investigation business. After much prodding by Ms. Adams, Ms. Snyder agreed to help her learn about the business by letting her observe what was done in the office. Ms. Adams demonstrated great eagerness and curiosity and volunteered to assist on various matters. In fact, she repeatedly offered to testify in proceedings of which she had no direct knowledge. Ms. Adams was not paid for her services. Within a week or so after she started working with Ms. Snyder, Ms. Adams began meeting with DBPD officers regarding alleged confidential information that she observed in Ms. Snyder's office. During June and July of 1989, Ms. Adams met with Sgt. Musco of the DBPD numerous times, usually a couple times a week. She provided him with documents that she claimed to have been obtained from Virginia Snyder, Donald Pierce and/or Respondent. Other than Ms. Snyder's public allegations, no evidence was presented to establish that the DBPD solicited or planted Ms. Adams in Ms. Snyder's office. Lieutenant Lunsford, who assumed responsibility for the investigation approximately two months after the meetings began between Ms. Adams and other DBPD officers and around the time the entire incident became public with a great deal of fan-fare, was very credible and forthwright. He accepted Ms. Adams statements regarding the Respondent based upon what he felt was corroborative circumstantial evidence, but candidly admitted that "I would say I'd question things that she said in general conversation, yes . . . it sometimes would take a lot to convince me about some of the things she said, yes." At the hearing in this matter Ms. Adams' testimony was often vague and sometimes contradictory and inconsistent. While some of her memory lapses can be attributed to the passage of time, the vagaries, inconsistencies and contradictions in her testimony make it difficult to decipher fact from fiction. NCIC/FCIC Records The National Crime Information Center (NCIC) and the Florida Crime Information Center (FCIC) maintain criminal history records that can be accessed by computer. The computer records also contain automobile registration information. Law enforcement agencies can obtain access to the NCIC/FCIC System by obtaining an appropriate computer terminal. Law enforcement personnel who utilize the computer are supposed to obtain a certification. As part of his duties with the Police Department, Respondent was trained to access NCIC/FCIC information through the NCIC/FCIC computer terminal. In order to obtain this certification, Respondent had to become familiar with the operation of the terminal and the restrictions on access to the information contained in the system. Section 943.053(2), Florida Statutes, provides that "criminal justice information derived from federal criminal justice information systems or criminal justice information systems of other states shall not be dessiminated in a manner inconsistent with the laws, regulations, or rules of the originating agency." 28 CFR Section 20.21(f)(4)(b) provides that "law enforcement agencies are required to provide that direct access to criminal history record information shall be availble only to authorized officers or employees of criminal justice agencies and, as necessary, other authorized personnel essential to proper operation of the criminal justice history record information system." As a result of his training, Respondent knew that sanctions could be imposed against a law enforcement agency for misuse of the criminal history records obtained through the computer access to the NCIC/FCIC System. Respondent also knew that use of the limited access information obtained over the terminal for personal gain could result in criminal prosecution. The general public can obtain access to certain information in the NCIC/FCIC System through the Public Records Act, Chapter 119, Florida Statutes. The information available under the Florida Public Records Law regarding criminal history records is different from the information available to law enforcement officers accessing those records for a criminal justice purpose. The public records access is limited to in-state criminal history records and does not include sealed criminal history records. Law enforcement officers accessing the records for a criminal justice purpose have access to both non- Florida criminal history records and sealed criminal history records. Since 1974, the Florida Department of Law Enforcement has maintained an automated data base, identified as the centralized criminal history dissemination file. This data base is comprised of records of the dissemination of Florida criminal history records from the NCIC/FCIC System as a result of both law enforcement requests and public sector requests. At the Delray Beach Police Department, the NCIC/FCIC computer terminal was located on the second floor near the police and fire dispatchers. The evidence presented in this case established that, while the door to the room was supposed to be locked, there was relatively free access to the room and computer terminal. During the spring and summer of 1989, Respondent was the only Delray Beach patrolman certified to use the NCIC/FCIC computer, but all of the dispatchers for the DBPD were certified. In addition, some officers utilized the computer even though they had not been certified. The evidence indicates that there was very little control over the dissemination of NCIC/FCIC information obtained via the computer. Some reports were distributed with little or no concern paid to protecting the security of the information. Ms. Adams contends that, during the time she was volunteering at Ms. Snyder's office, she observed that Ms. Snyder and Donald Pierce had NCIC/FCIC criminal history records on certain individuals. The evidence established that Respondent was the computer operator at the time that certain NCIC/FCIC criminal history records which later were turned over by Nancy Adams to the Delray Beach Police Department were generated. However, the evidence did not clearly establish that Respondent turned any such records over to Virginia Snyder, Donald Pierce, Nancy Adams, or any other unauthorized person. At the hearing in this case, Ms. Adams could not specifically tie Respondent to the delivery of any NCIC/FCIC records to Virginia Snyder or anyone else except in one case. She testified that the criminal records of Manuel Garcia were delivered by Respondent to Donald Pierce at a restaurant in Boca Raton. Previously, she had told Sgt. Musco of the DBPD that Manual Garcia's record was taken from Virginia Snyder's office. Ms. Adams also testified that she was told by Virginia Snyder and Donald Pierce that they regularly received NCIC/FCIC criminal history records from Respondent and that she heard Donald Pierce call Respondent and request certain NCIC/FCIC records. This testimony has been disputed by Respondent, Virginia Snyder and Donald Pierce. In her various statements, Ms. Adams has given different versions for the source of many of the documents that she turned over to the DBPD. At different times, the documents were alleged to have been handed to her by Respondent, given to her by Donald Pierce, removed from Virginia Snyder's office and/or Donald Pierce's truck. It is impossible to reconcile the sometimes conflicting stories on the source(s) of the documents. These inconsistencies and the questions raised regarding Ms. Adams' credibility lead to the conclusion that Petitioner has not met its burden of proof in this case. While it is conceivable that Virginia Snyder and/or Donald Pierce had some NCIC/FCIC records in their possession at certain times, it can not be concluded from the evidence produced in this case that Respondent was the source of any of those documents. There are a number of possible ways that Ms. Adams, Ms. Snyder and/or Donald Pierce could have obtained copies of NCIC/FCIC printouts. In fact, in earlier testimony Ms. Adams alluded to another alleged source that Ms. Snyder and Mr. Pierce had at the DBPD and/or the sheriff's office. While the explanations offered by Respondent as to why he requested certain criminal history records were not totally satisfactory, the evidence was not clear and convincing that Respondent turned such documents over to any unauthorized individual. Phone lists Ms. Adams also testified that Respondent provided Virginia Snyder with confidential phone lists of the Delray Beach police officers. The evidence established that those phone lists were widely disseminated and that Virginia Snyder had access to those lists from several sources. In fact, Ms. Snyder had copies of such lists dating back more than ten years, even though there is no evidence that Ms. Snyder had any dealings with Respondent until 1989 when Donald Pierce began doing some work for her. Thus, it appears that Ms. Snyder had a source for obtaining the phone lists long before she ever met Respondent. The evidence was not convincing that Respondent directly provided any such lists to Virginia Snyder. Respondent admits providing some phone lists to Donald Pierce in connection with Mr. Pierce's continuing involvement with the police union. Petitioner has not established that the dissemination of the phone lists to Donald Pierce was improper. Conclusion Respondent admits "running license tags" for Donald Pierce on the computer and verbally providing Mr. Pierce with the resulting non-confidential information. However, he denies ever providing any NCIC/FCIC criminal record printouts to Donald Pierce, Virginia Snyder or Nancy Adams. Respondent's close association with Donald Pierce and his willingness to provide him with phone lists and verbal information obtained from "running license tags" certainly raises some questions as to his judgment. In addition, Respondent did not carefully guard the confidentially of the criminal history records that he admittedly obtained. However, the evidence indicates that such information was not closely protected throughout the Department. In sum, the evidence did not clearly and convincingly establish that Respondent was lacking of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1994. J. STEPHEN MENTON 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 March 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-6175 As noted in the Preliminary Statement, only Petitioner submitted separately identified and numbered proposed findings of fact. The following rulings are made on the proposed findings of fact submitted by Petitioner. Adopted in substance in findings of fact 1. Adopted insubstance in findings of fact 21. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in pertinent part in findings of fact 31. Adopted in pertinent part in findings of fact 24 and 30. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 23. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Addressed in the Preliminary Statement. Rejected as unnecessary. Rejected as unnecessary. Subordinate to findings of fact 16 and 27-30. 15-21. Subordinate to findings of fact 16 and 27-30. COPIES FURNISHED: John P. Booth, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack Scarola, Esquire Searcy, Denney, Scarola, et al. 2139 Palm Beach Lakes Boulevard Post Office Drawer 3626 West Palm Beach, Florida 33402-3626 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
