The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on her race in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner is an African-American female who was employed as an Adult Case Manager in Respondent’s Madison County Clinic from December 18, 2003 to October 11, 2004. Petitioner did not have an employment contract with the Respondent. As part of her job duties, Petitioner was required to prepare client progress notes for each service, contact or session with a client. In accordance with Respondent’s Outpatient & Rehabilitation Services Online Client Record Handbook, “an individualized PROGRESS NOTE is required for each service, contact, or session. The notes must be individualized; ‘Generic’ notes, ‘Xerox’ copies, or word processing duplicate notes are not permitted.” Respondent is a Medicaid provider. Medicaid is billed for services rendered by Respondent’s case managers based upon each case manager’s progress notes and how much time the case manager records he or she spent on client services. If case managers do not properly complete their case management reports or if they don’t properly calculate the time spent on services, Respondent has to repay Medicaid for funds improperly received. If the reports and/or times recorded appear fraudulent, Respondent could lose its Medicaid provider status. Jan Agner, Petitioner’s supervisor, testified that Petitioner received extensive training during her employment orientation regarding the proper preparation of case management progress notes. Ms. Agner also testified that as part of her training, Petitioner was provided with a copy of the Respondent’s Outpatient & Rehabilitation Services Online Client Record Handbook. On September 2, 2004, September 3, 2004, and September 14, 2004, Petitioner acknowledged that she completed a client progress note for one client and then "Xeroxed" that note for her remaining clients adding one or two sentences to each note. Petitioner billed from 20 minutes to 1 hour and 15 minutes for services provided to each client. While auditing files in the Madison County Clinic, Petitioner’s Supervisor, Jan Agner, reviewed Petitioner’s client progress notes and became concerned that the notes were an abuse of the Medicaid system and constituted fraud. Petitioner’s questionable billings were removed from the computer and were not submitted to Medicaid for payment. Jan Agner contacted Candy Landry, Respondent’s Human Resources Coordinator, to report her concerns about Petitioner’s excessive billings. Ms. Landry asked Ms. Agner to put her concerns in writing in the form of a memorandum to Dr. Michael McGee, the Clinical Program Director, and to furnish a copy to Human Resources for review. In an October 7, 2004, memorandum to Dr. McGee, Ms. Agner outlined her concerns regarding Petitioner’s case progress notes and stated that she believed the majority of Petitioner’s billings for the three dates in question constituted fraud. Ms. Agner recommended that Petitioner receive a written reprimand; that she rewrite the case management portion of the notes in question; that she be placed on conditional probation for three months; and that Ms. Agner take the responsibility of reviewing all of Petitioner’s progress notes. Respondent has a policy that all supervisors are to contact Human Resources prior to issuing a written reprimand or any type of disciplinary action so that the proposed disciplinary action may be discussed and all documentation reviewed. This policy helps to prevent discriminatory actions from occurring by individual supervisors. Candy Landry, together with John Convertino, Respondent’s Chief Administrative Officer, reviewed the information from Ms. Agner and submitted a written recommendation to Chris Gosen, the Chief Operations Officer, that Petitioner be terminated for falsification of records and inflation of her time. Mr. Gosen approved the recommendation for termination and prepared a letter to Petitioner stating that she was terminated from her position for falsification of records due to billing excessive amounts of time for minimal case management services provided. Respondent’s Personnel Manual provides that over- billing or falsification of records shall subject employees to reprimand or termination. Ms. Landry testified that Respondent takes Medicaid fraud very seriously and that in every case where falsification of records is proven, termination will be recommended. Petitioner testified that she believed that she had been discriminated against by Respondent based upon a white secretary’s statement referring to "these people" getting public assistance and then wanting help with lights, water, and gas. This secretary, Janice Croft, performed no supervisory role over Petitioner. Petitioner testified that she reported this incident to her supervisor, Jan Agner, and that the secretary immediately apologized for her inappropriate comments. Petitioner did not notify Human Resources of her concerns regarding the secretary’s comment. Petitioner’s only other proffered evidence of discrimination was that a white case manager, Catherine Cruse, had submitted a note with a copy of a client’s signature, but that she had not been terminated. Jan Agner and Candy Landry testified that on one isolated occasion in 2002, Catherine Cruce had a Client Service Plan (CSP) with a “Xeroxed” signature from a previous CSP. This was discovered when Ms. Agner performed an audit of files. An investigation was conducted and Ms. Cruce denied that she had submitted a false signature. Additionally, Ms. Cruce thereafter produced the form with her original signature which she had mistakenly put in a drawer at her desk. Because Respondent could not prove that Ms. Cruce had personally submitted a false signature, Ms. Cruce was placed on a one-week leave without pay. Unlike Catherine Cruce who denied copying a client’s signature on one isolated occasion, Petitioner acknowledged that she had submitted "Xeroxed" client progress notes on September 2, 3 and 14, 2004. Candy Landry testified that in 2004, prior to the date of Petitioner’s termination, two white employees, one male and one female, had been terminated for falsifying records. A third white employee was fired in 2005 for a similar offense. In 2004, there were 24 total employees in the Respondent’s Madison County Clinic, 11 of whom were African- American. Ms. Agner has hired three African American case managers in the Madison County Clinic since Petitioner’s termination on October 11, 2004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of August, 2005, 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 3rd day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Millie Miller 1485 Southwest Lee Street Madison, Florida 32340 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
The Issue This matter is a bid protest filed by STATEWIDE challenging the DEPARTMENT's decision to award a contract for service of process services to All American Legal Service, Inc., (herein after All American). The DEPARTMENT's position was chat a company could meet the two years of experience in serving legal process requirement if key personnel had at least two years of experience. All American was the lowest bidder on ITB-DOT-95/96-9003. STATEWIDE was the second-lowest bidder. STATEWIDE protested, claiming the DEPARTMENT should have rejected All American's bid on the grounds that All American did not have two years of experience and had not identified its key personnel or provided the DEPARTMENT with copies of circuit court issued certifications to serve process. During the formal hearing on October 23, 1995, testimony was received that All American is the corporate successor of a firm that was formed approximately 23 months prior to the bid being submitted and had as part of its organization an independent contractor, Robert Simmons, who was a licensed process server and who lacked two years of experience in serving process at the time the bid was submitted. All American also retained the services of the founder and former owner, Jon C. Martin, to act as an advisor. Mr. Martin lacked two years of experience in serving civil process at the time the bid was submitted. The DEPARTMENT offered testimony that it did not require the bidding entity to have been in existence for more than two years so long as the company had employees (either direct employees or independent contractors) with the requisite experience. DEPARTMENT officials also testified that no personnel were considered key personnel by the DEPARTMENT. DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER The DEPARTMENT's first exception is rejected as irrelevant. The DEPARTMENT's remaining exceptions are rejected and need not be individually reached inasmuch as the conclusion of this Order is chat a decision to waive the two years of experience requirement in the bid documents would be an abuse of discretion. To describe a requirement as so essential as to require no consideration of the bid when it is not met, and later construe the bid documents as allowing waiver of the requirement is, by definition, without reason and arbitrary
Findings Of Fact The DOT issued ITB-DOT-95/96-9003 (the ITB) soliciting bids from contractors to provide for one year on an as-needed-basis to its General Counsel all services necessary to effectuate service of process, service of subpoenas, and service of other papers statewide in accordance with the applicable laws to be submitted on August 16, 1995. AALSI submitted the lowest bid for the ITB. Statewide submitted the second lowest bid for the ITB. Section 1.5 of the ITB, Joint Exhibit 1, stated as follows: GENERAL Bidders should meet the following minimum qualifications. Have been actively engaged in the type of business being requested for a minimum of two years. When submitting the bid, each bidder shall submit a written statement, (FORM D), detailing their qualifications which demonstrate they meet the minimum qualifications contained in Subparagraph 1.5.1.1. Bidders' failure to prove the above item(s) will constitute a non-responsive determination. Bids found to be non-responsive shall not be considered. (Emphasis in original.) A representative of the DOT testified and both parties agree that the word "should" in the provision above is mandatory and in context means "shall." It was important to DOT that bidders have at least two years experience in the business of serving process, and DOT intended to reject any bids which did meet this requirement. Exhibit "A" to the ITB, "Scope of Services," Section B.1, "Services Required," and B.5, "Who Shall Provide Services," provided respectively that: B.1 Services Required The contractor shall provide all services necessary to effectuate service of process, subpoenas and other papers throughout the state of Florida, and shall provide such services in accordance with the laws of the state of Florida. . . B.5 Who Shall Provide Services Services shall be provided by individuals in compliance with Chapter 48, Florida Statutes, and other applicable law. Section 48.29, Florida Statutes, requires that persons serving process be certified by the chief judge of each judicial circuit. The business being requested, as the term is used in the ITB, is all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida for civil actions in accordance with the laws of the State of Florida. No evidence was received that the DOT is involved with the service of arrest or search warrants. Paragraph 1.5.2, "Qualifications of Key Personnel," provides that: Those individuals who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration of certificate should be included in the bid package. The ITB required that a bidder demonstrate that its key personnel had experience in providing all services necessary to effectuate service of process, subpoenas, and other papers throughout the State of Florida in accordance with the law. Form D asked bidders to answer the following questions: How many years has your business been serving process? In what counties are your currently serving process? Describe your current capabilities to serve process in the State. If you do not have the current capability to serve process in all counties of the State of Florida, describe the changes that you will make in order to be able to serve process in all counties. Describe the means by which your business would accomplish routine services of process on a statewide basis under the Scope of Services of the Invitation to Bid. Describe the means by which your business would accomplish priority service of process on a statewide basis under the Scope of Services of the Invitation to Bid. The ITB contained a provision which permitted it to waive minor informalities or irregularities in bids received which were a matter of form and not substance. The requirement that the bidder have two years experience is not, under the terms of the ITB, a waivable provision, but was part of the essential minimal requirements which the bidder must have. In response to the first question on Form D, AALSI responded: All American Legal Service, Inc. and its predecessor firm, Jon C. Martin & Associates, have been in business over two years and provides nationwide service for its existing clients. DOT accepted the representation of AALSI in evaluating whether it possessed the required two years of experience, and concluded AALSI was qualified. DOT also evaluated the other responses by AALSI to Form D to assess its approach to providing the scope of work required by the ITB, and concluded it was qualified. Evidence presented at hearing revealed that Jon C. Martin, a former law enforcement officer, had begun a private investigation business as a sole proprietorship in September, 1993. Mr. Martin, who testified at hearing, found that it was more profitable to serve process than to conduct investigations, and changed the emphasis of the business; however, Mr. Martin was not personally authorized to serve process nor did he serve any process until May, 1994, although he had served arrest warrants as a law enforcement officer. Mr. Martin used the services of qualified process servers to serve process in the central Florida region; however, these personnel were not employees of Martin. Mr. Martin was a member of the National Association of Professional Process Servers (NAPPS), whose members are qualified to serve process; and Mr. Martin used this service to find the names of persons qualified to serve process in those counties and jurisdictions in which he did not have employees or contract personnel. Mr. Martin changed the name of his business to All American Process, and ultimately incorporated under that name. Mr. Martin sold All American Process in May, 1995 to Andrew Forness and Forness' father, who changed the name of the corporation to All American Legal Service, Inc. Mr. Martin agreed to be an unpaid advisor/consultant to Mr. Forness after the sale. Mr. Forness has virtually no experience as a process server, and had never been qualified to serve process or served process until after May, 1995. Mr. Forness is dependent upon Robert Simmons, an independent contract process server, for daily advice on service of process. Mr. Forness has continued to use the network of personnel used by Mr. Martin, who are not employees of the business, and NAPPS to serve process. The business does employ two full-time, paid certified process servers, who reside and work in central Florida area. One of these employees, Noah Medeiros, was first authorized to serve process in Orange County in September 1995, and is not authorized to serve process in any other county in Florida. No information was provided on the other employee. Mr. Forness did not identify anyone as a key individual in the bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That DOT not award the bid to AALSI which was determined to have been a nonresponsive bidder, and that it consider awarding the bid to the next lowest, responsive bidder, Statewide. DONE and ENTERED this 18th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-5035BID Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Paragraph 1 Paragraph 3 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraphs 6,7 Paragraph 5 Paragraph 8 Paragraph 6 Paragraph 9 Paragraph 8 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 6 Paragraph 12 Conclusion of Law Paragraphs 13,14 Subsumed in Paragraph 13 Paragraphs 15-20 Subsumed in Paragraphs 16-18 Paragraphs 21-26 Subsumed in Paragraphs 18-19 Paragraph 27 Subsumed in Paragraphs 7,8 Paragraph 29 Ultimate finding Paragraph 30 Paragraph 14 Paragraph 31 Irrelevant Paragraph 32 Ultimate finding Respondent's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 5 Paragraph 5 Paragraph 11 Paragraph 6 Subsumed in Paragraph 5 Paragraph 7 Subsumed in Paragraph 12 Paragraph 8 Not necessary Paragraph 9 Paragraph 13 Paragraph 10,11 Subsumed in Paragraph 14 Paragraph 12-16 Irrelevant or argument Paragraph 17 Paragraph 9 Paragraph 18-25 Irrelevant or argument Paragraph 26,27 Subsumed in Paragraphs 2,3 Paragraph 28-33 Subsumed in Paragraph 16 Paragraph 34-41 Subsumed in Paragraph 19 COPIES FURNISHED: J. Layne Smith, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, FL 32308 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
The Issue The issue is whether Respondent, Wade Raulerson Pontiac,1/ committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2009),2/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, or by reducing Petitioner’s wages and ultimately discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact Wade Raulerson Honda and Wade Raulerson Pontiac are each an employer as that term is defined in Subsection 760.02(7), Florida Statutes. They are subsidiary companies of Morgan Auto Group, a Tampa-based company that owns eight car dealerships in Gainesville, Ocala, and the Tampa Bay area. On March 7, 2008, Petitioner, a black male, commenced employment at Wade Raulerson Honda as a detailer. In April 2008, Petitioner was promoted to detail manager. As Detail Manager, Petitioner earned a salary of $950 per week, or $49,400 per year. At the time he was hired, Petitioner received from Morgan Auto Group an “Associate Manual,” essentially an employee handbook setting forth, among other things, the parent company’s policy promoting equal employment opportunity and prohibiting discrimination or harassment based on age, sex, disability, race, color, national origin, sexual orientation, marital status, or “any other non-merit factor.” The Associate Manual also set forth a conflict resolution process for any employee complaints or grievances, including those of harassment, discrimination, or denial of equal employment opportunity. The employee was to first discuss the problem with his supervisor or department manager. If the response at the first step was not timely or satisfactory, the employee could then submit his complaint to the general manager of the dealership, or to the HR manager for the parent company. There were three employees in the Detail Department of Wade Raulerson Honda. As detail manager, Petitioner supervised the other two employees, Berton Curtis, who was black, and Matthew Luchenburg, who was white. Mr. Curtis worked for $8.50 per hour, and Mr. Luchenburg was paid $8.00 per hour. The work performed by Petitioner was termed “detailing” and was performed to prepare used cars for the showroom and sales lot. Petitioner pressure washed the engine, buffed and waxed the car, and shampooed the interior. He examined every detail of the interior and exterior of the used car to ensure that it was clean and ready to show on the lot. The bulk of the work performed by the other two employees was termed “cleaning” or “washing” and was performed on new cars and used cars already on the showroom floor. They vacuumed and dusted the interior, then ran the car through the car wash. Their work was much less exacting and time consuming than the detailing work performed by Petitioner. The evidence presented at hearing established that Mr. Curtis performed some “detailing” work, but that the great majority of the detailing performed on the premises of Wade Raulerson Honda was performed by Petitioner. In addition to paying Petitioner for detailing work, Wade Raulerson Honda also paid an outside vendor $125 per car to perform detailing on used cars. Wade Raulerson Honda also sent some of its used cars to be detailed at Wade Raulerson Pontiac for a fee. These outside sources were used because the volume of used cars was more than Petitioner could handle alone, not due to any dissatisfaction with Petitioner’s job performance. Respondent stipulated that Petitioner’s job performance was very good throughout his employment. In late 2008 and into 2009, the poor economy was especially hard on retail automobile sales. By June 2009, business was off by 40 percent at Wade Raulerson Honda, and management looked for any way possible to cut costs. Wade Raulerson Honda was organized under the headings of “fixed operations” and “variable operations.” Fixed operations comprised the Parts Department and the Service Department, which included the Detail Department. Variable operations included the Sales and the Finance and Insurance Departments. Dan Schmidt, then the general manager of Wade Raulerson Honda, explained that fixed operations are easier to control, and that when business turns down, they are the most obvious place to cut expenses. In June 2009, Mr. Schmidt, in consultation with Tom Yonkers, his Fixed Operations Director, decided to close the Detail Department and to send his used cars to Wade Raulerson Pontiac’s larger detailing facility. Petitioner’s Detail Manager position was eliminated altogether. Mr. Curtis and Mr. Luchenburg were reassigned to new positions in which they performed their washing duties as well as lot cleanup, mowing and edging, and sundry other duties that allowed Mr. Schmidt to make further cuts in maintenance and janitorial expenses. Mr. Schmidt also laid off service advisors and two lube technicians. Mr. Schmidt testified that Petitioner was a good employee, and “good employees are very hard to come by.” Mr. Schmidt sought ways to retain Petitioner’s services. He offered Petitioner a non-management position that would have essentially involved performing the type of work being done by Mr. Curtis and Mr. Luchenburg, but at a rate of $600 per week, significantly more than the other two men were paid. Petitioner declined the offer, saying he could not take such a large cut in salary. Mr. Yonkers contacted his fixed operations director counterpart at Wade Raulerson Pontiac, Charles Jones, to inquire whether Mr. Jones had any openings appropriate for Petitioner. Mr. Jones already had three detailers and was paying them $13 an hour. Two of these employees, including the detail manager, were black. Mr. Jones agreed to meet with Petitioner and to try and make a space for him. Mr. Jones testified that he was interested in grooming Petitioner for the detail manager position. He understood that Petitioner had been making around $900 per week at Wade Raulerson Honda, and believed that a productive Detail Manager would be worth that much money. On or about June 12, 2009, Petitioner met with Mr. Jones at Wade Raulerson Pontiac. They discussed the position that Mr. Jones had in mind for Petitioner and talked about money. Mr. Jones made a tentative offer to Petitioner of $17 per hour with a guarantee of 55 hours per week. He gave Petitioner a “Morgan Auto Group Pay Plan” form filled in with those terms. The form contained signature spaces to be completed by the employee, the employee’s manager, and the general manager of the dealership. Mr. Jones told Petitioner that the offer was not considered binding until all three parties had signed the pay plan. This form was never signed by management of Wade Raulerson Pontiac. Mr. Jones testified that he reported the $17 per hour offer to Mr. Dalessio, who would not agree to pay Petitioner any more money than his current detailers were receiving. Mr. Dalessio believed it was unfair to his current employees to bring in a new man at a significantly higher wage than they were making. A second Morgan Auto Group Pay Plan was prepared for Petitioner, with a pay rate of $13 per hour and no guarantee as to the number of hours per week. Petitioner initially declined this offer. On June 16, 2009, Petitioner was given a transfer notice by Wade Raulerson Honda, stating that he was transferring to Wade Raulerson Pontiac due to the closure of the Honda’s dealership’s Detail Department, “with time served and benefits not lost.” The notice also stated that Petitioner’s future wages were to be negotiated at Wade Raulerson Pontiac, not at Wade Raulerson Honda. On June 16, 2009, Petitioner happened to meet Morgan Auto Group’s HR manager, Jason Hillman, in the parking lot of the Honda dealership. Petitioner showed Mr. Hillman the $17 offer sheet and asked to discuss the matter with him. Mr. Hillman agreed to meet with Petitioner at the Pontiac dealership. They went separately to Wade Raulerson Pontiac and met with Mr. Dalessio to discuss the situation. Mr. Hillman explained that the $17 offer was not binding and that the $13 offer was the only offer on the table for Petitioner. Mr. Hillman stated, not very diplomatically, that the $17 offer sheet was “not worth the paper it was written on.” Petitioner became upset and asked Mr. Hillman to fire him so that he could collect unemployment. Mr. Hillman explained that he could not fire Petitioner because he had not yet accepted the offer from Wade Raulerson Pontiac. He further explained that if Petitioner declined the offer, he would be considered to have been laid off from Wade Raulerson Honda and that the company would not oppose his claim for unemployment benefits. Petitioner eventually accepted the $13 per hour offer from Wade Raulerson Pontiac. He worked and was paid for 12 hours over the course of two days, at the rate of $13 per hour. On June 19, 2009, Mr. Jones met with Petitioner to have him formally sign the $13 per hour pay plan. At that time, Petitioner told Mr. Jones that he could not work for those wages. He left the dealership and did not return to work. Petitioner was not fired from his position. Petitioner alleged that, subsequent to his leaving Wade Raulerson Pontiac, the dealership hired a white detailer named “Joe” at a rate of $15 per hour. However, evidence presented at the hearing established that Wade Raulerson Pontiac hired a detail technician named Joe Halliday on July 13, 2009, at a rate of $13 per hour, the same rate offered to Petitioner. Petitioner offered no evidence to establish that the terms and conditions of his employment were different than those of similarly situated persons outside of his protected classification, or that his wages were reduced or he was terminated in retaliation for engaging in protected conduct. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to any member of management at Wade Raulerson Honda or Wade Raulerson Pontiac.3/ Petitioner offered no credible evidence that Wade Raulerson Honda or Wade Raulerson Pontiac discriminated against him because of his race, subjected him to harassment because of his race, or retaliated against him in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Wade Raulerson Honda for closing its Detail Department, or by Wade Raulerson Pontiac for declining to hire Petitioner at a salary nearly equal to the amount he made as detail manager at Wade Raulerson Honda. Petitioner disputed the company’s claim that the Detail Department at Wade Raulerson Honda was itself losing money, but failed to establish that the company’s decision to make large cuts in fixed operations expenses was anything other than a rational business decision necessitated by a severe decline in sales revenue. The evidence established that Petitioner was considered a good employee and that the Wade Raulerson dealerships made every good faith effort, consistent with the economic realities of the retail automobile sales business as of June 2009, to retain Petitioner’s services during the economic downturn. The discussions between the parties turned on money, not race. Petitioner simply decided that he could not work for the amount that Wade Raulerson Pontiac offered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wade Raulerson Honda and Wade Raulerson Pontiac did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 13th day of September, 2010.
The Issue The issue for consideration in this case is whether Respondent's certification as a law enforcement officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the CJSTC was the state agency responsible for the certification of law enforcement officers in Florida. Respondent was certified by the CJSTC on May 21, 1982, holding law enforcement certificate number 105625. On November 7, 1997, the Tampa Police Department's Street Anti-Crime Squad initiated one of its periodic routine reverse prostitution stings at the intersection of Crawford and Nebraska Avenues in Tampa. Officer Dana Berry, a female police officer, played the part of the prostitute. Located in an unmarked police car across the intersection, also in civilian dress, was the "eyeball," Sergeant Russell Marcotrigiano, Officer Berry's supervisor. Officer Berry was to wait to be approached by a male customer, and when that happened, was to agree to an assignation for money. Without doing anything in furtherance thereof, if the customer agreed, she was to direct him to room 8 of the El Rancho Motel, down the block on Nebraska Avenue. Her pointing to the motel was the signal to Sergeant Marcotrigiano that a deal had been made. If the customer went to the motel, he would be arrested there. If he did not and drove away, the offense was in the solicitation and the customer would be arrested in a routine traffic stop within two blocks of the site. Sergeant Marcotrigiano was there to coordinate the sting, and even more important, to safeguard the welfare of Officer Berry. Parked in a marked patrol car about two blocks north on Nebraska Avenue were two uniformed officers, Officer Stephen Prebich and Officer MacFarlane, who, upon the direction of Sergeant Marcotrigiano, were to arrest the perpetrator in the routine traffic stop. The sting operation started at approximately 1:45 p.m. on November 7, 1997. At approximately 2:06 p.m., Respondent, driving a green pickup truck, stopped at the intersection in question and made eye contact with Berry, who was standing near a parking lot close-by. Immediately upon contact, Berry came over to the driver's side of Respondent's vehicle and asked if he was lost. Berry did not recognize Respondent as a police officer though there is some evidence, and Respondent so claims, that they had met at work on a previous occasion. Respondent denied being lost and asked Berry if she needed a ride. Berry indicated that she had a room at a nearby motel where they could go, but not without knowing what Respondent wanted. She had been instructed not to mention a sexual act but to wait until the subject first described the requested sexual act. Ultimately he said "a blow-job," and when Berry asked him how much money he had, he replied either "twenty," as Berry claims, or "plenty," as Respondent claims. At this point, considering the deal made, Berry directed Respondent to the motel and pointed to it. This was the signal to Sergeant Marcotrigiano that Respondent should be arrested. Instead of going to the motel, Respondent drove off, turning right onto Nebraska Avenue, heading north. Within two blocks, he was pulled over by Officers Prebich and McFarland. Both officers went to Respondent's vehicle, accompanied by two other officers. Weapons were not drawn. When the officers got to Respondent's vehicle, Officer Prebich opened the driver's door and requested he get out of the vehicle. When Respondent complied, he was placed under arrest. At this point, Officer Prebich did not recognize Respondent. However, it appears that Officer MacFarlane did recognize him. While Respondent was being searched, a pay stub was discovered which indicated that Respondent was a police officer. The arresting officers took Respondent back to the command post where Sergeant Marcotrigiano and Officer Berry were waiting. At this point, Respondent was asked where he worked and replied, "tactical." Prebich claims he did not say much to Respondent at that time. He states he may have mentioned Berry's name to Respondent but does not believe he did so. Officer Politano was working at the command post at this time, writing up paper work on the prostitution sting and monitoring the radio. He recalls Respondent being brought into the command post under arrest. Sergeant Marcotrigiano spoke with Respondent and instructed Politano to take down the names of the parties. In the course of doing this, Politano spoke with Respondent who told him he knew Officer Berry and her former supervisor, Sergeant Raulerson, and was just playing with Berry when he made the statements attributed to him by her. Politano contends that it is quite common for police officers to tease undercover operatives who are on duty, including women. This teasing, however, is usually confined to cat-calls and whistles, and he has never heard of a proposition such as was involved here in a stake-out situation. Respondent admits to a conversation with Officer Berry at the location in issue on the afternoon of November 7, 1997. However, he denies having driven past Berry's location twice before stopping to speak with her. Both Berry and Sergeant Marcotrigiano claim he did, however, and neither would have any reason to dissemble. Further, Respondent contends that he could not have been at the intersection at 2:06 p.m. as indicated by Berry and the sergeant. He claims to have left his credit union on Bearss Street after 1:45 p.m., and considering the state of traffic, could not have traveled the 8.9 or so miles between the credit union and the intersection of Crawford and Nebraska Avenues, gone around the block twice as alleged, and still have had the conversation with Berry in time to be arrested at 2:06 p.m. There are several collateral matters to consider regarding the time issue. In the first place, Respondent contends that the accuracy or lack thereof is indicative of the non-credibility of the arrest report. However, no independent evidence was introduced to show that the time stamp on the credit union transaction ticket, showing 1:45 p.m., is accurate. Regardless, Respondent admitted to a version of the reported conversation between him and Berry, and it is that conversation and the circumstances which surround it, not the exact time, which is important. Respondent categorically denies having seriously solicited Officer Berry for an act of oral sodomy. He claims that while driving in the vicinity, searching for a shop to reasonably detail his relatively new truck, he spotted her on the sting. They made eye contact and, he claims, she nodded at him. Since he recognized her from work, he thought she recognized him as well. She did not, though he had seen her on several occasions at the police station where he would go frequently. Respondent claims he noticed Officer Berry when he stopped for a traffic light at the intersection, and while he was waiting for the light to change, she came up to his truck and asked him if he was lost. Thereafter, the conversation progressed as previously indicated, though Respondent claims to have said "plenty" rather that "twenty" in response to her query as to how much he had. He claims he had no intention to have any sexual contact with Berry and drove off, heading north on Nebraska Avenue, when she pointed to the motel. When questioned by Sergeant Marcotrigiano at the command post, Respondent claims he indicated that he thought Berry had recognized him as he had recognized her, and was just "fucking around." Respondent related this same story to Captain Doyle, the supervisor, but such crass verbalization without an indication he was kidding makes Respondent's claim unbelievable. In July 1997, Respondent and the CJSTC entered into a Stipulation and Settlement Agreement in the Commission's case number L-3388 whereby Respondent's certificate was suspended for 80 hours, and he was placed on probation for a period of one year after reinstatement of his certificate. The documentation of record does not indicate the basis for that action. During May 1999, Respondent, through counsel, filed a motion to dismiss the criminal charge of soliciting for prostitution which had been filed against him in Hillsborough County Court. On June 14, 1999, the motion to dismiss was granted and Respondent was discharged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certification as a law enforcement officer. DONE AND ENTERED this 24th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1999. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire Police Benevolent Association 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue presented for decision is whether or not Respondent failed to maintain the qualifications of a law enforcement officer and, if so, what penalty would be appropriate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings. Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on December 6, 1974, and was issued Certificate Number 02-12297. From at least June 1982 through August 29, 1986, Respondent was employed as a trooper with the Florida Highway Patrol. During late 1984, Respondent's performance came under scrutiny by Lt. Dun, who was Respondent's supervisor. Lt. Dunn performed an evaluation of Respondent's performance as a trooper on December 28, 1984. Lt. Dunn used a standard appraisal form which uses a numerical evaluation with a range of 1 through 40. The highest score denotes the highest level of performance. A rating of 18 or under denotes a conditional evaluation. On Respondent's 1984 evaluation by Lt. Dunn, he earned a performance rating of 19. Based on his marginal performance, he was given a special evaluation which noted, inter alia, that he had feigned sickness and thereby had misused sick time, by using 81 hours of sick leave while he appeared to be in good health and was late turning in his weekly reports of daily activities, and specifically that Respondent used 81 hours of sick time while he appeared to be in good health. Lt. Dunn gave Petitioner a special evaluation for the third time within 60 days of his 1984 annual evaluation and at that time Respondent received a numerical rating of 17. That rating is indicative of less than satisfactory performance. At that time, Respondent had not improved in the areas found deficient during the time period when he received his 1984 annual performance evaluation and the two succeeding special evaluations. (Petitioner's Exhibit 1) Sgt. David Johnson, the squad supervisor assigned to the Miami office since approximately November 1984, worked with Respondent and directly supervised him during January 1986. On January 9, 1986, Sgt. Johnson and Respondent worked the same shift. Respondent's car had been moved from a shopping mall where he left it unattended for several hours. The car was ordered moved by supervisory officers in the Miami office. Respondent lived near Sgt. Johnson and phoned him to get a ride to work since his car had been moved when he left it unattended at the shopping mall. Sgt. Johnson was aware that Respondent's car had been towed before he called him seeking a ride to work. While in route to work that morning, Respondent told Sgt. Johnson that he needed professional counseling and admitted that he was addicted to drugs and alcohol. Respondent was referred to the highest officer in authority at the Miami station, Cpt. Jack Hardin, for counseling. At approximately 2:45 p.m. on the afternoon of January 6, 1986, Respondent was interviewed by Cpt. Hardin. Respondent told Cpt. Hard in that he needed professional help due to his addiction to drugs and alcohol. Respondent advised Cpt. Hardin that this problem had persisted during the previous six years and that he wanted to save his job. Based on that admission, Cpt. Hardin reassigned Respondent to administrative duties. He also advised Respondent that it was necessary for him to notify Major Grayson, Unit Commander, inasmuch as use of a controlled substance, to wit, cocaine, was a felony. Based on Respondent's admission to use of a controlled substance and the other problems associated with drug addiction, Cpt. Hardin took possession of Respondent's firearm. Since April 1, 1982, Cpt. M. Leggett has been the commander of the subdistrict in Miami known as Troop "E." Respondent was assigned to Troop "E" during all times material to this case. On June 9, 1986, Cpt. Leggett summoned Respondent to his office for a disciplinary interview. Respondent was provided notice of the interview and was represented by legal counsel. Respondent provided a sworn oral statement after he was apprised of the purpose of the interview and the charges which had been filed against him, i.e., possession of a controlled substance in violation of the rules and regulations of law enforcement officers and a notice of the intended disciplinary action. During Respondent's sworn statement, he admitted that he had used cocaine and that use continued during the years 1982 through 1986. In mitigation, Respondent stated during his interview with Cpt. Leggett that his use was "occasional" and that he would only use a gram or two at any given time. At the time of his interview, Respondent appeared to be in control of his faculties. (Testimony of Respondent and Capt. Leggett).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's law enforcement Certificate Number 02-12297. DONE AND ENTERED this 26th day of September, 1988, at Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1988. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Paul A. Lavery 5325 West 20th Lane Hialeah, Florida 33012 Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 2302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
