The Issue Whether the Respondent discriminated against the Petitioner in his employment on the basis of race and disability and/or retaliated against the Petitioner for exercising his rights under Sections 760.01-760.011, Florida Statutes (1999), and, if so, the appropriate remedy.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Hicks is an African-American. He was employed by Metro Dade Transit from approximately 1993 until May 13, 1999. During his employment, he worked in the Revenue Department as a Transit Revenue Collector. When Mr. Hicks first began working for Metro Dade Transit, he was assigned to work the night shift as a truck driver. He was responsible for going to different bus yards and either pulling cash boxes from the buses or reading the numbers on the bus's turnstiles and comparing those to the numbers on the cash boxes. In or around 1995, Mr. Hicks was assigned to the bus yard identified as Northeast 2. His job was to remove the cash boxes from the buses that came into the yard and to replace the full boxes with empty ones. He would then empty the cash boxes through a machine that would drop the money into the safe. In or around 1997, Mr. Hicks returned to his former assignment driving a truck to different bus yards. He worked the second shift and visited three different bus yards, where he would give each revenue collector assigned to the bus yards a 30-minute break during the rush hours. Terry Simonson, a Transit Revenue Collections Supervisor 2, hired Mr. Hicks as a revenue collector for Miami Dade Transit in 1993. Yfrahin Rodriguez was a Transit Revenue Collections Supervisor 1 from 1993 until May 1998, when he left his position to become a code enforcement officer for Miami-Dade County Team Metro. Mr. Hicks's employment with Metro Dade Transit terminated on May 13, 1999, for reasons that will be discussed below. Mr. Hicks received satisfactory employment evaluations for 1995, 1996, and 1997, and he was given merit salary increases in 1996, 1997, and 1998.6 In his evaluations for 1995 and 1996, which were completed by his then-supervisor Curtis Fullington in January 1996 and January 1997, respectively, Mr. Hicks was described as an employee who "cooperates reluctantly at times" and who "disregards some rules and procedures." In his evaluation for 1997, which was completed in January 1998 by Mr. Rodriguez, Mr. Hicks was described as an employee who "reluctantly cooperates with his peers, and has trouble accepting advice and counseling with his supervisors" and who "disregards some departmental rules and policies." In addition, several supervisors reported to Mr. Simonson that Mr. Hicks was "a little difficult" to deal with. Mr. Rodriguez was very professional in carrying out his duties as a supervisor and treated all of the employees he supervised, including African-American employees, fairly and with respect. Frantz Benoit, Douglas Fahie, Antomic Augustin, Darryl Clodfelter, and Greg West are current and former Miami Dade Transit Revenue Collectors who were supervised by Mr. Rodriguez and worked with Mr. Hicks. Mr. Benoit, Mr. Fahie, Mr. Augustin, and Mr. West are African-Americans. Mr. Rodriguez always acted very professionally in his dealings with Mr. Benoit, Mr. Fahie, and Mr. Augustin as their supervisor, and Mr. Rodriguez treated them fairly and with respect. Mr. Benoit, Mr. Fahie, Mr. Augustin, and Mr. Clodfelter did not ever observe Mr. Rodriguez treat Mr. Hicks with disrespect or in a derogatory manner, and none of these individuals ever heard Mr. Rodriguez call Mr. Hicks "boy" or harass him. Mr. Rodriguez and Mr. Hicks were involved in several confrontations over the years. Mr. Benoit observed Mr. Rodriguez and Mr. Hicks in a "heated discussion" at one time. Mr. Augustin observed Mr. Rodriguez and Mr. Hicks get into a "verbal confrontation" in May 1997, when Mr. Rodriguez asked Mr. Hicks a question related to Mr. Hicks's job; Mr. Augustin observed Mr. Hicks use profanity during the confrontation. Mr. Clodfelter observed an "exchange" between Mr. Rodriguez and Mr. Hicks when Mr. Rodriguez introduced Mr. Hicks to a new duty log that he wanted all the revenue collectors working as "UT-2's" to complete. Mr. Rodriguez gave both Mr. Hicks and Mr. Clodfelter a duty-log form that required entry of the time the employee arrived at a particular bus yard and the time the employee left the bus yard.7 Mr. Clodfelter discerned from the exchange between Mr. Hicks and Mr. Rodriguez that Mr. Hicks misunderstood the nature of the duty log and believed he was being singled out and was the only revenue collector required to complete the duty log. Mr. Clodfelter described Mr. Hicks as "very upset" and observed Mr. Hicks tell Mr. Rodriguez he would not complete the duty log. Mr. West is an African-American who worked as a Miami Dade Transit Revenue Collector from 1985 until he was terminated in 1997. Mr. West believes that Mr. Rodriguez harassed both him and Mr. Hicks because they spoke out about things they thought were wrong with Miami Dade Transit. Mr. Simonson was Mr. Rodriguez's supervisor during the time that Mr. Rodriguez was a Transit Revenue Collections Supervisor 1. Mr. Hicks complained to Mr. Simonson several times that he believed Mr. Rodriguez was harassing him, although Mr. Hicks never told Mr. Simonson that Mr. Rodriguez was making remarks to him related to his race. As a result of Mr. Hicks's complaints, Mr. Simonson met several times with Mr. Rodriguez and Mr. Hicks to discuss the difficulties they had working with one another. In Mr. Simonson's opinion, Mr. Rodriguez and Mr. Hicks had problems working together because Mr. Hicks gave Mr. Rodriguez "a hard time." At the end of each of the meetings, however, Mr. Rodriguez and Mr. Hicks shook hands and agreed to try to work together amicably. One of these meetings between Mr. Simonson, Mr. Rodriguez, and Mr. Hicks was also attended by Othan Gilbert, who was at the time the manager of Treasury Services for Miami Dade Transit and Mr. Simonson's supervisor. Neither Mr. Simonson nor Mr. Gilbert recalls Mr. Hicks saying anything about Mr. Rodriguez telling Mr. Hicks that all Blacks do is complain or that he was going to get rid of Mr. Hicks. Events leading to Mr. Hicks's termination. In 1998 and 1999, Omar Yoda was a Transit Revenue Processing Supervisor 1; Mr. Yoda did not supervise Mr. Hicks because the revenue processing section is distinct from the revenue collections section. In late December 1998 or early January 1999, Mr. Hicks approached Mr. Yoda and told Mr. Yoda that he had a job at the post office lined up and that he wanted to use up his accrued sick leave before he quit his job with Miami Dade Transit. Mr. Yoda told Mr. Hicks that he could not work another job while he was out on sick leave because it was not permitted by Miami Dade Transit's rules. Mr. Hicks protested that other employees were allowed to use their sick leave in this way. Mr. Hicks did not tell Mr. Yoda that he was sick or that he needed to be placed in a light duty assignment. On January 5, 1999, Mr. Hicks sent to Mr. Simonson by facsimile transmittal a Certificate for Return to Work issued by Andover Medical Group and dated January 4, 1999. It stated on the certificate, which was apparently signed by a medical doctor, that Mr. Hicks would be able to return to work on February 11, 1999. No diagnosis was included on the certificate. On March 1, 1999, Mr. Hicks sent to Mr. Simonson by facsimile transmittal a Certificate for Return to Work issued by Andover Medical Group and dated March 1, 1999. It stated on the certificate, which was apparently signed by a medical doctor, that Mr. Hicks would not be able to return to work until April 9, 1999. No diagnosis was included on the certificate. Mr. Hicks submitted Requests for Leave for the periods extending from January 1 through 9, 1999; January 12 through 23, 1999; January 26 through February 6, 1999; February 9 through 21, 1999; February 24 through March 7, 1999, and March 8 through 17, 1999. Mr. Hicks claimed that he went on sick leave because he was under a lot of stress and had an abnormal heartbeat.8 Mr. Hicks never told Mr. Simonson that he was disabled, however, nor did Mr. Hicks provide Mr. Simonson with any medical documentation to support the requests for sick leave and the certificates Mr. Hicks submitted from his doctor. Mr. Hicks did, however, ask Mr. Simonson the procedure for requesting a light duty assignment; Mr. Simonson referred him to the Human Resources Department, but heard nothing more about a light duty assignment for Mr. Hicks. Mr. Hicks never told Mr. Rodriguez that he was disabled or requested a light duty assignment or any other accommodation.9 While he was out on sick leave, Mr. Hicks's supervisors received word that Mr. Hicks was working at another job. An investigation was initiated, and an employment verification inquiry was made to the United States Postal Service. The United States Postal Service provided Metro Dade Transit with an employment verification form referencing March 26, 1999, as the date of the request; the document confirmed that Mr. Hicks had been employed as a United States Postal Service career employee since January 16, 1999, with a base salary of $23,893.00 per year. Mr. Hicks worked at the Pembroke Pines Post Office in Broward County, Florida, as a custodian. He swept the floors and cleaned the restroom. Mr. Simonson prepared a formal Disciplinary Action Report dated March 30, 1999, detailing the results of the investigation into allegations that Mr. Hicks was working for the United States Postal Service during the time he was on sick leave from his job with Metro Dade Transit. Mr. Hicks was placed on administrative leave on March 19, 1999.10 The results of the investigation were discussed with Mr. Hicks at a disciplinary hearing that was held on April 23, 1999. In a letter dated April 27, 1999, Othan Gilbert, then the Manager of Treasury Services for Metro Dade Transit and Mr. Simonson's supervisor, advised Mr. Hicks that, after a management review of the circumstances detailed in the Disciplinary Action Report dated March 30, 1999, the decision had been made to recommend that he be terminated as an employee of Metro Dade Transit. Mr. Hicks was terminated from his employment with Miami Dade Transit effective May 13, 1999. Mr. Hicks was also terminated from his position with the United States Postal Service. Mr. Hicks filed his Charge of Discrimination with the FCHR on May 17, 1999, and the date on this document, handwritten next to Mr. Hicks's signature, was May 7, 1999. Mr. Hicks appealed the decision to terminate his employment with Metro Dade Transit, and at the final hearing on the appeal, Mr. Hicks entered into a stipulation with Miami-Dade County whereby he agreed to resign in lieu of being terminated and to withdraw a pending appeal of five-day suspension imposed in January 1998.11 Incidents Mr. Hicks considers discriminatory. Mr. Hicks complained that, when he was placed on administrative leave in late March 1999, Mr. Gilbert ordered him, "with a nasty attitude,"12 to turn in his badge at the Government Center. This required Mr. Hicks to drive all the way downtown, when, according to Mr. Hicks, he could have turned in his keys at the Northeast Bus Yard, which would have been more convenient for Mr. Hicks. Mr. Hicks also complained that Mr. Gilbert gave him an order to go directly home after he turned in his badge. Mr. Hicks interpreted this to mean that Mr. Gilbert had ordered him not to stop on the way home. Mr. Hicks complained that, as a result of Mr. Gilbert's order, Mr. Hicks was unable to stop to use the bathroom on the way to his house. Mr. Hicks also testified to a number of incidents that allegedly occurred in 1995, 1996, 1997, and early 1998, that he believes constituted harassment and created a hostile work environment: In January 1995, Mr. Hicks had an accident with a county vehicle and damaged the top of a truck he was driving to collect change machines from buses. Mr. Hicks reported the damage, but he received a record of counseling, which he thinks was a little extreme under the circumstances. On July 18, 1996, a computer technician went to the Northeast Bus Yard where Mr. Hicks was working; the computer technician shut down the computers so he could work on them. As a result, Mr. Hicks could not empty the fare boxes on the buses that came into the yard, so the buses left the yard with full fare boxes. Mr. Hicks feels aggrieved because Mr. Rodriguez wrote a memorandum dated July 19, 1996, to Mr. Simonson complaining of continuous problems at the Northeast Bus Yard and mentioning Mr. Hicks's failure to do his job as one cause of the problems.13 Mr. Hicks perceives this accusation as a great injustice because he worked the second shift, which was the hardest shift; he chose the hardest shift because he was "into the physical thing because I like to work hard."14 On February 19, 1997, Mr. Rodriguez walked over to him at the Northeast Bus Yard with a "silly grin" on his face and called Mr. Hicks "boy"; told Mr. Hicks he was tired of Mr. Hicks questioning him every time he gave him an order; told Mr. Hicks that "all you Black revenue collectors" do is complain, especially Mr. Hicks; and told Mr. Hicks that he was going to do his best to get Mr. Hicks fired. Mr. Rodriguez denied having made any of these statements. In May 1997, Mr. Hicks called to report that he was sick. Mr. Hicks spoke with a fellow employee, and asked him to give the message to the supervisor that he was taking a sick day. Mr. Rodriguez caused Mr. Hicks's pay to be docked for eight hours' work and told him that employees were supposed to speak with a supervisor when calling in sick. Mr. Hicks questioned Mr. Rodriguez's action and Mr. Rodriguez "got very, very nasty and we got into a yelling match."15 Although Mr. Hicks acknowledged that Mr. Rodriguez might be correct about the rule, Mr. Hicks knew of other employees who just gave a co- worker a message and were not docked any pay. Mr. Hicks claims that, before docking his pay, Metro Dade Transit should have sent around a memo stating the rule about reporting sick to a supervisor.16 In May 1997, Mr. Hicks heard rumors that "they" were going to fire him because he, or his attorney, filed a complaint with the Equal Employment Opportunity Commission.17 When he confronted Mr. Gilbert about the rumors, Mr. Gilbert claimed he did not know anything about it. On June 3, 1997, Mr. Hicks was not able to take a lunch break because it was impossible for him to keep the schedule that Mr. Rodriguez had established. On June 6, 1997, Mr. Hicks forgot to turn in his keys to a county vehicle, and they made a "big statement about it" being against the rules even though they never made a "big statement" when someone else forgot to turn in their keys.18 On June 6, 1997, Mr. Hicks perceived that things had gotten so bad on the job that he went to the Employee Assistance Program for help. He was so stressed that, for about six months, he did not report for work on weekends. Mr. Hicks claims he missed these days of work to avoid Mr. Rodriguez when neither Mr. Simonson nor Mr. Gilbert was working and could not witness what Mr. Rodriguez was doing to him. On June 18, 1997, Mr. Hicks was at the Central Bus Yard, where he was supposed to work from 7:30 p.m. to 9:00 p.m. At around 8:00 p.m., Mr. Rodriguez drove up, and Mr. Hicks asked Mr. Rodriguez if he had to stay at the bus yard until 9:00 p.m. Mr. Rodriguez told him that "all you Blacks do is complain" and that he would fire all "you people" if it was up to him. Mr. Rodriguez denied having made these statements.19 On December 31 of every year, Metro Dade Transit forced employees to work emergency overtime. Mr. Hicks, along with a number of other employees, was forced to work a 10-hour shift on December 31, 1997, when he was only supposed to work eight hours. Mr. Hicks always questioned the supervisor about this emergency overtime because he believed that only the county manager could call for emergency overtime and then only for an act of God. On January 20, 1998, Mr. Hicks was forced to "work out of class" when he was told to log buses into the computer. Mr. Hicks claims his job description did not include this type of work. Mr. Rodriguez and "a couple of other guys" prepared written statements attesting that Mr. Hicks threatened to kick Mr. Rodriguez's "posterior" during an altercation between Mr. Rodriguez and Mr. Hicks. Mr. Hicks denies having threatened Mr. Rodriguez on this occasion.20 Mr. Hicks called in sick for one day, and he was required to bring a doctor's letter even though the union contract provided that an employee did not need a doctor's letter unless taking three days' sick leave.21 During the time that he was assigned to Government Center, Mr. Rodriguez harassed him by ordering him to do assignments that no other truck driver would normally do. Mr. Hicks considered Mr. Rodriguez's harassment so serious that he went to the doctor, and he claimed that he was told he had developed ulcers. He also went to the Miami-Dade County Employee Assistance Program for help because he believed that his supervisors did not pay attention to him; Mr. Hicks went to a psychiatrist at the recommendation of a counselor at the Employee Assistance Program.22 Summary Mr. Hicks failed to present persuasive evidence that Mr. Rodriguez or anyone employed by Metro Dade Transit more likely than not harassed him or created a hostile work environment because Mr. Hicks is an African-American. It is apparent from the evidence presented by both Metro Dade Transit and Mr. Hicks that Mr. Hicks routinely questioned Mr. Rodriguez's authority to direct his activities on the job and that he sometimes responded to Mr. Rodriguez in a belligerent and defiant manner. This behavior by Mr. Hicks, rather than his race, was the cause of the friction between Mr. Rodriguez and Mr. Hicks. Mr. Hicks's attribution of racist remarks to Mr. Rodriguez is rejected as not credible given the testimony of three African-American employees of Metro Dade Transit that Mr. Rodriguez always treated them fairly and with respect. Even assuming that the various incidents that Mr. Hicks claims were discriminatory and tended to create a hostile work environment happened as Mr. Hicks described, the incidents were unrelated to Mr. Hicks's race; were, for the most part, simply the complaints of a disgruntled employee; and were not so severe or pervasive that the conditions of Mr. Hicks's employment were altered. Mr. Hicks failed to present persuasive evidence to establish that Metro Dade Transit more likely than not discriminated against him on the basis of handicap. Mr. Hicks provided no proof that he was either mentally or physically handicapped. Furthermore, even if Mr. Hicks had established that he was handicapped, the persuasive evidence establishes that the only accommodation he requested was extended sick leave from January through mid-March 1999, during which time he worked for the United States Postal Service. His termination was unrelated to any real or perceived handicap but was, rather, the result of his abuse of Metro Dade Transit's sick leave policy. Mr. Hicks failed to present any evidence that he was more likely than not the victim of retaliation by Metro Dade Transit. The only discrimination complaint that Mr. Hicks filed against Metro Dade Transit was signed and dated by Mr. Hicks after he learned that Mr. Gilbert was recommending that he be terminated, and the complaint was filed with the FCHR after Mr. Hicks was terminated from his employment. Mr. Hicks presented no evidence that Miami Dade Transit even had notice that he intended to file a discrimination complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Eugene Hicks against Treasure Service/Metro Dade Transit and Ron Jones. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 1st day of August, 2003.
The Issue At issue in this proceeding is whether Petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, Respondent, Florida Department of Law Enforcement, Criminal Justice standards and Training Commission, acting on a tip from local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (Metro Dade Corrections), had in its employ a number of correctional officers who were not certified, undertook a review of the employment records of Metro Dade Corrections. As a result of this review, Respondent identified 363 individuals, including Petitioner, who were employed by Metro Dade Corrections as correctional officers but who had not been certified by Respondent. On August 10-11, 1988, personnel employed by Respondent visited the Metro Dade Corrections personnel office and audited the personnel file maintained by Metro Dade Corrections of each of the 363 individuals in question, including Petitioner's personnel file. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that Metro Dade Corrections had failed to apply for certification on behalf of the 363 officers. Over the course of their two-day visit, employees of Respondent worked with employees of Metro Dade Corrections to complete the documentation on each file. Variously, they prepared registration forms and affidavits of compliance and assembled other missing documentation, such as birth certificate and fingerprint cards. The 363 completed applications for certification were returned to Tallahassee by Respondent for processing. The vast majority of the individuals were certified; however, Respondent declined, for reasons hereinafter discussed, to certify Petitioner. The pending application Petitioner has been employed by the Metropolitan Dade County Department of Corrections and Rehabilitation (hereinafter called Metro Dade corrections) as a correctional officer since March 1, 1985, without benefit of certification. As part of the pre-employment process, Petitioner submitted to Metro Dade Corrections an affidavit dated March 1, 1985, which provides in pertinent part: I fully understand that, in order to qualify as a law enforcement or correctional officer, I must fully comply with the provisions of Section 943.13, Florida Statutes, as follows: * * * Be of good moral character. I further understand that by executing this document I am attesting that I have met the qualifications as specified. Metro Dade Corrections, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, Metro Dade Corrections routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre- employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. At the time Petitioner began employment on March 1, 1985, Metro Dade Corrections had completed its investigation into Petitioner's background and had concluded that Petitioner possessed the good moral character required for certification. Fred Crawford, the Metro Dade Corrections director, executed an affidavit of compliance on March 1, 1985, that contained the following sworn statement: I hereby certify that I have collected, verified, and am maintaining on file evidence that the applicant has met the provisions of Section 943.13(1)-(8) and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. There is no evidence that a complete application package for Petitioner's certification was prepared before August 11, 1988. Respondent did not receive a complete application for certification on Petitioner's behalf until August 11, 1988, when Metro Dade Corrections, as the employing agency, submitted to Respondent a complete application package for certification of Petitioner as a correctional officer. This was the first application for certification submitted on Petitioner's behalf. By letter dated November 1, 1988, Respondent notified Petitioner that his application for certification was denied because Petitioner did not possess the requisite good moral character for certification as a correctional officer. Respondent gave the following as its reasons for concluding that Petitioner lacked good moral character: You have unlawfully and knowingly possessed and introduced into you body cannabis. During the course of the polygraph examination administered on February 8, 1985, the polygraph examiner misunderstood Petitioner to say that Petitioner had used marijuana between 60-70 times, with the last date of usage being at least four years before the date of the polygraph examination. Petitioner's truthful statement to the polygraph examiner was that he had used marijuana between 6-7 times with the last date of usage being at least four years before the date of the polygraph examination. Petitioner made no attempt to conceal the truth as to his prior use of marijuana. He had not used any controlled substance for at least four years before the date of the polygraph examination. At the time of the hearing, Petitioner was 33 years of age and had worked as a correctional officer since March 1985. Prior to that, he served in U.S. Air Force for eight years as a security police officer. His job performance evaluations with Metro Dade Corrections have ranged between above satisfactory to outstanding. Petitioner has been promoted and has received several commendations for his service. Petitioner is a valued and trusted employee. Petitioner's reputation is that he is a dependable, reliable, and trustworthy individual who possesses high moral character. Following the denial of his request for certification as a correctional on November 1, 1988, Petitioner timely requested a formal hearing by the election of rights form he filed with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Division of Criminal Justice standards and Training issue a Final Order which approves Petitioner's application for certification as a correctional officer. DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner, individually, are addressed as follows: Addressed in part in paragraph 13. Rejected in part as unnecessary to the result reached. Rejected as unnecessary to the result reached. 3-6. Addressed in paragraph 12. 7. Addressed in paragraph 6. 8-9. Rejected as being unnecessary to the result reached. 10-13. Addressed in paragraph 13. 14-22. Rejected as being recitation of testimony and as being subordinate to the conclusions reached. The proposed findings of fact submitted for petitioner on the generic record are addressed as follows: 1-14. Rejected as recitation of witness testimony, and not findings of fact. The matters have, however, been addressed in paragraphs 7 so far as deemed necessary to the result reached. 15,16,18-20. Addressed in paragraphs 1-4. 17. Rejected as unnecessary to the result reached. 21. Addressed in paragraph 7, otherwise rejected as unnecessary to the result reached in a legal conclusion. 22-27. Rejected as subordinate to the conclusion reached. 28. Rejected as misleading and not supported by competent proof. 29-36. Rejected as being subordinate to the conclusion reached or not supported by competent evidence. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1-2. Addressed in paragraphs 10-11. Addressed in paragraph 10. Rejected as being unnecessary to the result reached. 5-6. Addressed in paragraph 12. 7-8. Addressed in paragraph 13. 9. Addressed in paragraph 5. COPIES FURNISHED: Donald D. Slesnick, II Attorney at Law Law Offices of Slesnick and Lober 10680 Northwest 25th Street Suite 202 Miami, Florida 33172 Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lee Kraftchick, Esquire Assistant County Attorney in and for Dade County Metro Dade Center 111 N.W. First Street, Suite 2810 Miami, Florida 33128 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner, Jose Iglesias (Petitioner or Iglesias) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On August 14, 2003, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. The Complaint alleged: Vice Mayor Iglesias is constantly interfering with Police Department’s day-to- day operations, and spreading false rumors about Police Department personnel. (Document #1) Vice Mayor Iglesias is causing a hostile work environment with constant complaints about officers. Vice Mayor Iglesias is constantly encouraging racism, pitting hispanics against white and black officers of the Department. Vice Mayor Iglesias filed false police reports (verbally) constantly for his own gain and benefits. Vice Mayor Iglesias’s 16-year-old son works part time in Town Hall. (Nepotism) Vice Mayor Iglesias improper use of his title by instructing the Town Manager to take actions on the police department, and even retaliation against the Police Chief and myself. Vice Mayor Iglesias ordered public records about himself not to be released, and then when they were released he insisted the secretary releasing the records be fired. (Document #1) Mr. Iglesias is falsely using the title of M.D. and in fact used this title to gain his seat on the council and then becoming Vice Mayor. When Mr. Iglesias has been questioned on this matter by residents in the past he has stated he was a brain surgeon, a foot doctor, and a chiropractor, and could not list a hospital where he did his residency to become M.D. (Document #2) At all times material to this case the Petitioner was Vice Mayor serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Respondent is a town employee and serves as a police sergeant within the police department. Mr. Nieman has been so employed for over 20 years. After an investigation of three of the allegations set forth in the Complaint (only three were deemed legally sufficient to warrant investigation) and consideration of the Advocate’s recommendation, the Ethics Commission entered a Public Report on March 16, 2004. The Public Report dismissed the Complaint and closed the matter. On April 14, 2004, the Petitioner filed the instant Fee Petition pursuant to Section 112.317(8), Florida Statutes (2004). The Fee Petition alleged that the Complaint “is based on eight allegations, all of which are false and were known to be false by Complainant when he filed the Complaint.” Additionally, the Fee Petition stated the Complaint “was filed by the Complainant with the knowledge the Complaint contained one or more false allegations, or with reckless disregard as to whether the Complaint contained false allegations. ” At hearing, the Petitioner presented evidence as to the three allegations of the Complaint that were investigated and deemed legally sufficient to require an ethics investigation. Those allegations were: whether the Petitioner had filed false police reports for his personal benefit; whether the Petitioner had attempted to prevent the release of a public record or insisted on the firing of the person who had released the record; and whether the Petitioner had caused his son to be employed by the Town. The false police reports allegation stemmed from the Petitioner’s use of public roads for rollerblading. The Petitioner is an avid rollerblader and likes to rollerblade for exercise. The Petitioner opined that rollerblading puts less stress on his back and has less impact than jogging. The Petitioner frequently rollerblades on the public road within the Town. Automobile traffic on the road must go around the Petitioner in order to pass. It is the Petitioner’s position that since there is no sidewalk or shoulder suitable to rollerblade, he is entitled to use the road surface just as a pedestrian might use the road surface. The Petitioner skates toward the middle of the lane and not on the edge of the road surface because the roadway is better there for the rollerblades. The record in this case does not clarify whether the Petitioner skates with or against the traffic. In connection with the rollerblading, the Respondent believes that the Petitioner is not entitled to use the road as he does and that if the Petitioner did not use his position as a councilman for influence, he would be cited for rollerblading down the road as he does. Further, the Respondent maintains that the Petitioner has made verbal complaints against motorists who passed too close to him. The Respondent maintains that the verbal complaints are false in that the Petitioner is not entitled to use the roadway as he does and therefore cannot complain against motorists as he does. The Petitioner does not deny the activity. The Respondent has observed the Petitioner rollerblading down the road. The Respondent has not issued a citation to the Petitioner because he is assigned an administrative position within the police department and he believes he is not allowed to issue such citations. The Respondent based the allegation regarding this claim upon statements he has heard from police officers within the Town’s police department. The Respondent did not subpoena the officers to the hearing because he did not want to involve other Town employees in the matter. The Respondent does not have any evidence to support the allegation other than what he believed he had been told in his experience as a police officer for the Town. The record does not demonstrate any written record of either the Petitioner being cited for improper rollerblading or making a report against a vehicle. As to the second allegation that was investigated, a memo purportedly from the chief of police was released to a member of the public by accident. It was included within a stack of documents that had been requested by a private citizen. The document stated in part: SUBJECT: Ethics violations and continual interference of day-to-day police operations by the Vice Mayor Iglesias This memorandum is to inform you [Mayor Michael Addicott] of constant harassment of police personnel and interference in daily operations by the new vice mayor. The Petitioner admitted that he was concerned that the document had been released in error and that the person who wrongly released a document should be disciplined. The Petitioner did not know about the document before it was released. He did not attempt to prevent the release of the document. Instead, the Petitioner sought to, after-the-fact find out why the document had been released, if the document was in fact a public record subject to release, and if the employee should be disciplined for the release. The document in question was a public record, was subject to public release, and the employee was not disciplined for its release. Nevertheless, the Petitioner did require a second (and arguably third opinion) regarding whether the document constituted a public record. In the meanwhile, the controversy within the Town over whether the document should have been released was widely discussed among Town employees. The Respondent filed his claim based upon several reports that the Petitioner wanted the secretary who released the report fired. One of the Respondent’s sources was the Chief of Police. The Respondent did not question the veracity of the police chief. At hearing, the Petitioner did not deny that discipline would have been appropriate if the release of the document were shown to be erroneous. The Petitioner acknowledged that the Town pursued a full review of the matter and that he was among those who called for the review. As to the third allegation (that the Petitioner caused his son to be hired by the Town), the Respondent believed that once the Petitioner was elected as a councilman that the son was not eligible to work for the Town. The Respondent thought that rules prohibiting nepotism applied to the Petitioner’s son and that as such the son could not continue to work for the Town. The Respondent based this interpretation on a general but un- researched idea about nepotism. He also discussed this matter with another Town employee who also thought the son was not eligible to work for the Town. In fact, the Petitioner’s son, Joseph, started working for the Town in a part-time position prior to the Petitioner being elected to office. After the Petitioner became Vice Mayor, the son continued with his duties but was moved from an independent contractor status to part-time employee status. The son then received a raise in his hourly rate of pay when the Town employees also received a raise. The Petitioner did not supervise the son’s employment and did not direct the son’s work. The record is unclear as to whether the Petitioner voted on the pay raise or not. At hearing the Respondent maintained that he had had numerous conversations with persons at the Ethics Commission who recommended that he add the information regarding the nepotism claim to his allegations. He admitted that he did not independently check any laws or rules that might pertain to nepotism before filing the claim. Much of the Respondent’s attitude and comments in connection with the Petitioner must be viewed in the context of the happenings within the Town. For unknown reasons, the Town, its employees, and the governing council were in a state of change and confrontation. The Respondent and the Petitioner apparently do not relate well to one another personally. The Respondent is suspicious of the Petitioner’s medical credentials and is uncertain as to why the Petitioner holds himself out as an “M.D.”, when he is not licensed nor is he eligible to be licensed as a medical doctor. The Petitioner believes the Respondent holds some animosity toward him for unknown reasons. Further, because the Respondent admitted he believes the Petitioner is arrogant, that belief somehow that demonstrates malice toward the Petitioner. The questions of whether the Petitioner is credentialed to be a medical doctor, whether the Petitioner attempted to interfere with the police department, or whether the Petitioner spread false rumors regarding the police department were not investigated and do not support, if true, an ethics violation. If attorney's fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney's fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense against the Respondent’s Complaint. The expert merely opined that the invoices he reviewed were reasonable. He maintained that the Petitioner should recover $27,455.53 in this matter.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026
The Issue Whether Petitioner (the School Board) has just cause to terminate Respondent's employment on the grounds alleged in the Notice of Specific Charges.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. See Article IX, Florida Constitution, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract and assigned her to teach at Mae M. Walters Elementary School. Respondent began her employment with the School Board in 1993. While on traffic detail on August 10, 2000, Officer Calicchio stopped a car with an expired tag. At the time pertinent to this proceeding the car, a convertible, had its top down. The driver, a male, and Respondent, the front seat passenger, were the only occupants of the car. After the car pulled off the road, Officer Calicchio parked his patrol car behind the stopped vehicle, approached the vehicle, and asked the driver for his license and registration. The driver responded that he did not have his driver's license on his person and gave his name and date of birth to Officer Calicchio. Respondent informed Officer Calicchio that the vehicle belonged to her and gave him her license and the car's registration. Officer Calicchio returned to his patrol car to verify the information that had been given to him and to determine whether the driver had a valid license. While he was doing that, Officer Gomez appeared at the scene as backup for Officer Calicchio. Officer Gomez observed marijuana particles on the driver's shirt and in the car. After Officer Gomez related his observations to Officer Calicchio, the two officers took the driver into custody and placed him in the backseat of Officer Calicchio's patrol car. Officer Calicchio returned to the vehicle and observed marijuana particles in the vehicle. Officer Calicchio asked Respondent if he could search the vehicle. She consented and got out of the vehicle. After he completed his search, Officer Calicchio asked Respondent if he could search the large purse she was carrying. She consented and began pulling objects out of the purse and placing them on the hood of Officer Calicchio's patrol car. When Respondent slid her purse back up on her arm, Officer Calicchio asked if her purse was empty. Respondent answered in the affirmative. Officer Calicchio asked if he could look inside her purse. Respondent responded by leaning the purse towards him so he could look inside. Officer Calicchio observed two yellow envelopes in the bottom of the purse. Respondent consented to Officer Calicchio retrieving the two envelopes and opening them. The envelopes contained a green, leafy substance. When Officer Calicchio showed Respondent the contents of the envelope and asked what the substance was, Respondent fled on foot. Officer Calicchio, immediately followed by Officer Gomez, pursued Respondent. As she was fleeing, both officers observed Respondent reach into the front of her pants and pull out a plastic bag. As she was attempting to throw the bag into some bushes, Respondent slipped and fell to the ground. The plastic bag fell to the ground, landing next to the Respondent. The two officers recovered the bag and took Respondent into custody. The plastic bag contained a white-yellowish substance that Officer Calicchio field-tested using a Valtox field test. The substance tested positive for cocaine. Officer Calicchio also performed a field test on the green, leafy substance that was taken from the envelopes in Respondent's purse. The substance tested positive for cannabis. Subsequent tests by John Gall, a forensic chemist employed by the Broward County Sheriff's Officer, confirmed that the substance in the plastic bag was cocaine. The cocaine taken from the plastic bag weighed 35.2 grams. Respondent's conduct was sufficiently notorious to bring both Respondent and the educational profession into public disgrace or disrespect. Respondent's misconduct impaired her service in the community. On December 13, 2000, the School Board voted to suspend Respondent's employment and begin proceedings to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that upholds the suspension of Respondent's employment and terminates her professional service contract. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of August, 2001.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of an alleged violation of Section 493.6118(1)(f), Florida Statutes, by sleeping while on duty.
Findings Of Fact Respondent currently holds a Class "D" Security Officer License, Number D92-08606, issued pursuant to Chapter 493, Florida Statutes, effective June 2, 1994. During September and October of 1994, Motivated Security provided security services to Shurgard Storage, located at 1650 West Oakland Boulevard, Fort Lauderdale, Florida. On September 30, 1994, the Respondent was employed as a security officer by Motivated Security. On that date the Respondent's assigned post with Motivated Security was at the Shurgard Storage premises described above. On that date, the Respondent was assigned to the 6:00 p.m. to 2:00 a.m. shift. At approximately 11:15 p.m. on September 30, 1994, while the Respondent was on duty at the post described above, the Respondent was sound asleep in a golf cart for a period of at least one-half hour.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the violation charged in the Administrative Complaint and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner. Paragraphs 1 through 6: Accepted. Paragraphs 7 through 11: Rejected as subordinate and unnecessary details. (All of these proposed details are essentially correct; it is simply not necessary to repeat them.) Findings submitted by Respondent. (None.) COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Gerald Brown 3551 N.W. 41st Street Lauderdale Lakes, Florida 33309 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact At all times pertinent to the allegations herein, the Respondent, Darrell B. Daniels, was certified as a Law Enforcement Officer by the Criminal Justice standards and Training Commission having been issued certificate number 02- 34831, on December 2, 1983. At approximately 10:30 PM on July 31, 1985, seventeen year old Marta Stowell was picked up from work at a Tampa shopping center by her boyfriend, twenty-two year old Terry Hickock, and the two drove to a public beach located along the Courtney Cambell Causeway, in Tampa, in her car, arriving at approximately 11:00 PM, and parking behind some bushes in a wooded area of the beach. They then began necking which escalated into heavier contact and as a result, the parties moved into the back seat and disrobed. A short time later, they heard the approach of a car which stopped a short distance behind their vehicle. A few moments later, an individual with a flashlight came up to the car door and shined the light through the closed window on them. The person also tapped on the window and said, "Hello, there." The individual with the light appeared to be a uniformed police officer and the car he was driving was a police car. This individual, who the parties identified as Respondent, instructed them to open their car door and they complied. He then advised them that because they were nude, they were committing an illegal act in a public place. Respondent asked them their ages and when Ms. Stowell told him she was seventeen, he told them he was going to have to arrest her boyfriend for contributing to the delinquency of a minor. He also indicated he might have to place Ms. Stowell in a juvenile detention center and inform her mother of her conduct. Ms. Stowell was very upset at this prospect and began crying and begging Respondent not to arrest her boyfriend. In response to her pleas, Respondent told the couple, who had not yet been permitted to get dressed, that he felt sorry for them and thought he might be able to think of a way to get them, "off the hook." Respondent then walked over to his police car for a moment and then returned, kneeling at the open door, approximately an arm's length from Ms. Stowell. He told them he would let them go if they would "embarrass" themselves in his presence, and advised them to continue what they had been doing before he interrupted, while he watched. At the Respondent's direction, Ms. Stowell and Mr. Hickock then resumed the oral sex in which they had been involved when interrupted, for approximately eight to ten minutes, switching positions after a few minutes, while Respondent watched the entire time from a few feet away. While this was going on, Ms. Stowell felt degraded by being required to commit the act in front of a stranger and participated in it against her will only to prevent Respondent from arresting her boyfriend and from notifying her mother. While the couple was engaged in oral sex, Respondent, according to Ms. Stowell, touched her thigh, put his hand in her crotch area, and penetrated her vagina with his finger, all without her consent. Respondent then advised the couple he wanted them to engage in intercourse and when they told him that they had never done that before, he advised them that their choice was either to do as he said or he, Respondent, would have intercourse with Ms. Stowell. As a result, the parties tried to engage in an act of intercourse while Respondent watched but were unsuccessful. Respondent again threatened to have intercourse with Ms. Stowell but, apparently, decided against it. Though she had not previously engaged in intercourse with Mr. Hickock, Ms. Stowell agreed to attempt the act with him because she was fearful of the threat by Respondent to engage in intercourse with her if she did not perform with Mr. Hickock. When it became obvious that Stowell and Hickock were not going to be successful, Respondent took down Stowell's and Hickock's names, phone numbers, and home addresses. He then warned them not to tell anyone what had happened and not to acknowledge that they had seen him. He advised them that if they told anyone of what had happened, he would arrest Mr. Hickock. Respondent then got back in his patrol car and left the area. Between 7:00 and 8:00 AM the following morning, Ms. Stowell received a phone call at home from Respondent. He told her something had gone wrong with her tag number and that she must meet him to talk about what could be done about it. He said he would be in his civilian clothes driving his personal car, and she agreed to meet him at a local shopping mall she suggested. She did not show up, however, because she was afraid of being raped by him. Instead of meeting with Respondent, Ms. Stowell told her parents about the beach incident the night before and, thereafter reported the matter to the Tampa Police Department. The case was assigned to Detective Jerry Herren, who, during the course of his investigation, took a sworn statement from Mr. Hickock about the incident. Approximately two months later, Mr. Hickock was killed in a traffic accident. A few days after taking this statement, and based on information discovered during the investigation, on August 8, 1985 Herren arrested Respondent for the offenses outlined in the complaint. Subsequent to the arrest, Herren advised Respondent of his rights against self incrimination and took a statement from him in which Respondent admitted to having contacted Stowell and Hickock at the causeway on July 31, 1985, and having contacted Ms. Stowell the next day to ask her to meet him when he was off duty. He denied, however, that he had in any way threatened her or that he had touched her. His denial, however, was somewhat weakened by the statement of Gail Perry, who complained that on July 19, 1985, she had been involved in an incident with Respondent similar to that alleged by Ms. Stowell. In the Perry case, there was no touching, but there was an offer by Respondent to "forget about" Ms. Perry's lascivious misconduct if she would perform an act of fellatio on him. In the Perry case, as in the Stowell case, Respondent secured his victim's home phone number and the following morning, called in an attempt to obtain a date. Respondent thereafter admitted to Herren that he contacted Ms. Perry both while she was with her boyfriend and again, by phone. Respondent declined to testify or present any evidence in his own behalf. He made an argument, or summation, which contained statements of apparent fact, but, since the information was not produced under oath as evidence, it cannot be considered as evidence in opposition to the matters presented by the Petitioner. Consequently, the testimony of Ms. Stowell and that of the police officers who investigated her complaint is uncontradicted and it is found that, as alleged, Respondent committed a sexual battery on Ms. Stowell and used his position as a police officer in an improper manner in an effort to get her and Mr. Hickock to engage in sexual activity in his presence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's certification as a law enforcement officer be revoked. RECOMMENDED this 6th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1989. COPIES FURNISHED: Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel P.O. Box 1489 Tallahassee, FL 32302 Joseph S. White, Esquire Assistant General Counsel Dept. of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Darrell B. Daniels P.O. Box 310683 Tampa, FL 33680
The Issue An administrative complaint dated June 19, 1997, alleges that Respondent, Richard P. Bushey, committed aggravated assault and had adjudication withheld on a felony charge of carrying a concealed weapon, and therefore violated Section 493.6118(1)(j), Florida Statutes, and was not qualified for licensure, pursuant to Sections 493.6106(1)(b), 493.6118(1)(f) and 493.6101(7), Florida Statutes. The issues for disposition in this proceeding are whether the allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times relevant to the matters at issue, Respondent, Richard Paul Bushey (Bushey), held a class "D" security license no. D94-16538. Sometime around 9:30 p.m. on July 19, 1996, in Winter Garden, Florida, Joseph Howers was in a convenience store standing in line with his purchases when an individual, later identified as Respondent Bushey, entered the store swearing, waving his arms, and complaining about how people drive. Mr. Howers, who had never met Respondent Bushey before, commented something like, "Life is rough all over. I guess he'll get over it." After paying for his purchases, Mr. Howers left the store and got into his truck which was parked near the door of the store. He leaned over to arrange his parcel on the floor of the passenger side of the vehicle, and as he sat back up, he heard mumbling and saw Respondent Bushey at the truck window on the driver's side. Respondent Bushey was swearing and inarticulate, and Mr. Howers thought there was something wrong with him. Mr. Howers said, "Listen, go away, leave me alone. I don't know what your problem is but it's not with me." Respondent Bushey stepped back, lifted his t-shirt, and put his hand on a gun that was under the shirt. Afraid, but still under control, Mr. Howers said, "You don't want to do this- -I'm going to start my truck." Respondent Bushey pulled the gun out and extended it 2-3 feet from Mr. Howers' head. Mr. Howers backed out slowly and Respondent Bushey walked along, following the truck. When he was close to the road, Mr. Howers leaned across the seat out of the range of his vehicle's windows and stepped on the gas pedal. Once out of sight of Respondent Bushey, Mr. Howers called 911 on his cellular phone and reached the Winter Garden police dispatcher. He reported the incident and the police were sent to the convenience store. Mr. Howers continued to the police station where he was told that the arrest had already been made. He then returned to the convenience store to identify the individual who pulled the gun on him. The individual was Respondent Bushey, who by this time was in custody in the back of the patrol car. It was apparent to Mr. Howers that Respondent Bushey, at the time of the incident, had the ability to pull the trigger and shoot him. Mr. Howers did not provoke or otherwise justify the attack and had a reasonable and well-founded fear for his safety. As admitted in his response to requests to admit, on or about January 13, 1997, Respondent Bushey had adjudication withheld, in Orange County, Florida, on a felony charge of carrying a concealed weapon.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of State enter its Final Order revoking the Class "D" security license of Respondent Paul Bushey. DONE AND ORDERED this 12th day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1998. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 John M. Russi, Director Division of Licensing Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Douglas D. Sunshine, Esquire Division of Licensing Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Richard P. Bushey 1620 Cimarron Hills Drive Apopka, Florida 32703
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, on May 6, 1996, as a Code Enforcement Officer. Almost ten years later, on March 28, 2006, Respondent suspended Petitioner for five days for violating City of Gainesville Personnel Policy 19, Rule 19, by providing a false sworn affidavit attesting that a particular property was in compliance with an Order of the Code Enforcement Board when the property was not in compliance. Additionally, the Petitioner received a written warning and counseling regarding a violation of City of Gainesville Personnel Policy 19, Rule 13, which consisted of neglecting to perform a required re-inspection of a property for a period of several months. Petitioner’s work as a Code Enforcement Officer involved “responsible inspection work enforcing compliance with the City Codes and Ordinances pertaining to zoning, housing, landscaping, street graphics, lot clearance, junk vehicles, and related codes and ordinances.” On December 30, 2004, Petitioner received a complaint regarding violations of the housing code at 220 South East 1st Street, Gainesville, Florida. After inspecting the property further on January 5, 2005, Petitioner issued the owner a notice of violation allowing the owner until February 5, 2005 to remove non-operational vehicles and junk, trash and debris from the property. Petitioner re-inspected for compliance on May 16, 2005, when he found the property to be in non-compliance with the notice. Respondent states that Petitioner referred the case to the City of Gainesville Code Enforcement Board, and it was docketed as case number CEB2005-106. The City of Gainesville Code Enforcement Board is a quasi-judicial board created by the City of Gainesville pursuant to Florida Statutes Chapter 162 and City Code of Ordinances Chapter 2. The Code Enforcement Board is charged with hearing cases of alleged violations of the City’s Code. The Code Enforcement Board heard the case on June 9, 2005, found the owner guilty of the violation, and allowed the owner until July 13, 2005 to bring the property into compliance. On August 11, 2005, Petitioner made notes in the file to the effect that the matter had gone to the Code Enforcement Board and that he would “inspect for compliance with [the] order when time is up.” No other case-related activity was noted by the Petitioner in the time period between the Enforcement Board hearing on June 9, 2005, and Petitioner’s alleged January 4, 2006 inspection which led to the Affidavit of Compliance issued by Petitioner on January 6, 2006. On January 4, 2006 Petitioner noted in the file that the property was in compliance and later executed the Affidavit of Compliance before a licensed Notary Public after being duly sworn. Petitioner swore under oath in that Affidavit that the corrective action ordered by the Board had been taken. In February 2006, a new complaint regarding the above- referenced property was made to the Code Enforcement Division. The new complaint was reported by multiple sources. Code Enforcement Supervisor David Watkins investigated the February 2006 complaint. Watkins found the property not in compliance and deduced that Petitioner filed the affidavit a month earlier with the knowledge that the compliance sworn to in the Affidavit had not been achieved. Watkins’ determination is corroborated by photographic evidence presented at the final hearing and establishes that the property was not in compliance at the time of Petitioner’s affidavit. Watkins summarized his investigation and findings in a detailed Supervisory Report. He also learned from an interview with the owner of the 220 South East 1st Street property that the owner did not believe he had come into compliance with the order. Petitioner’s false affidavit misrepresenting the facts of case number CEB2005-106 permitted the violator to evade the penalty prescribed by the Code Enforcement Board of $250 a day for a period of 175 days or an accumulated fine of $43,750. Petitioner was issued an Employee Notice on March 28, 2006 for violation of City of Gainesville Personnel Policies and Procedures, Policy 19, Rules 19 and 13, resulting in a five-day suspension without pay. Policy 19, Rule 19, prohibits “immoral, unlawful, or improper conduct or indecency, whether on or off the job which would tend to affect the employee’s relationship to his/her job, fellow workers’ reputations or goodwill in the community.” The minimum disciplinary action provided for a first violation of Rule 19 is instruction and five day suspension or dismissal.” Policy 19, Rule 13 prohibits “productivity or workmanship not up to required standard of performance.” The minimum disciplinary action provided for a first violation of Rule 13 is “written instruction & cautioning.” Pursuant to the established procedure, Petitioner challenged the suspension through the three-step grievance process and was afforded the opportunity to present evidence and argument to the division manager, department head, and the City Manager’s Office. The disciplinary action was sustained at each level. Petitioner compared his case to a case handled by a white code enforcement officer where that officer was not disciplined. In response to Petitioner’s allegations, Watkins reviewed the case referenced by Petitioner to determine possible existence of violations similar those committed by the Petitioner. No evidence was discovered by Watkins to support Petitioner’s allegations. The allegations raised by Petitioner against his fellow code enforcement officer were not supported at the final hearing through proof of execution of a false affidavit by a similarly situated white employee. The City has had no cases of similar offenses within the memory of current management and no record of past cases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 19th day of July, 2007, in Tallahassee, Leon County, Florida. S DON W. 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 19th day of July, 2007. COPIES FURNISHED: Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Walter Booth 2810 Northeast 13th Street Gainesville, Florida 32609 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue At issue is whether the respondent violated section 493.6118(1)(n), Florida Statutes, as alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: During the period of time specified in the Administrative Complaint, May 19, 1994, through October 10, 1994, 24-Hour Security held a Class "B" Security Agency License, number B91-00117. From May 19, 1994, through October 10, 1994, Richard R. Cullen was president of 24-Hour Security and held, among other licenses, a Class "M" Manager License, number M86-00152. 24-Hour Security, whose only office is located at 1515 South Federal Highway, Boca Raton, Florida, is in the business of providing security guards to businesses and condominiums. It employs licensed security guards and trains and supervises them to ensure that they adequately perform their duties and carry out the instructions of 24-Hour Security's clients. From May 19, 1994, through October 10, 1994, Michelle T. Reilly was employed by 24-Hour Security and worked as assistant to Mr. Cullen. She began working for 24-Hour Security in September 1992 and has always been highly regarded as an employee by Mr. Cullen. He has trained her in all aspects of the private security service business in order for her to get the experience necessary to qualify for a chapter 493 manager's license. Prior to February 16, 1995, she had never held any type of license authorized by chapter 493 of the Florida Statutes. Mr. Cullen was aware that she was not licensed. Since the agency's inception, Mr. Cullen has designated himself manager of 24-Hour Security and has considered himself ultimately responsible for the operation of the agency. During the period of time at issue in this proceeding, Ms. Reilly's business cards identified her as "Branch Manager," and she was identified as such by licensed employees of 24-Hour Security. On one occasion during the Department's investigation, Ms. Reilly expressly identified herself to an investigator of the Department as manager of 24-Hour Security. During the period of time at issue in this proceeding, in addition to performing secretarial and bookkeeping duties, Ms. Reilly assisted Mr. Cullen in (1) hiring and training licensed security guards; (2) preparing daily work schedules for the guards; (3) preparing post orders outlining the duties a guard is to carry out at a particular post, including the client's special instructions or requirements; (4) supervising the operation of the agency's dispatch center; (5) addressing clients' problems; (6) consulting with clients regarding proper security precautions; (7) conducting post inspections to ensure that the guards are at their posts, properly uniformed and carrying out their responsibilities; and (8) writing security proposals for clients and in developing new accounts. In assisting Mr. Cullen with these duties, Ms. Reilly at times was allowed by Mr. Cullen to direct and control the activities of licensed security officers and to operate the agency. When Mr. Cullen was advised by the Department that Ms. Reilly could not function as or be designated as "manager" of 24-Hour Security, he immediately removed her business cards from the office. Ms. Reilly applied for a Class "MB" manager's license on November 9, 1994. Her application was denied by the Department by letter dated January 17, 1995, because she had "not demonstrated the lawfully gained experience or appropriate training" required for licensure. Ms. Reilly was issued a Class "D" Security Officer license on February 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order finding 24-Hour Security, Incorporated, and Richard R. Cullen guilty of the violation alleged in the Administrative Complaint and imposing a fine of $500 for this violation. DONE AND ENTERED this 25th day of April 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 25th day of April 1995. APPENDIX The following are my specific rulings on petitioner_s Proposed Findings of Fact. Paragraphs 1 through 9: Adopted in substance in Findings of Fact numbered 1 through 8. The following are my specific rulings on respondent_s Proposed Findings of Fact. Paragraph 1: Adopted in substance in Findings of Fact numbered 2 and 5. Paragraph 2: The proposed finding of fact in the first portion of the first sentence is rejected as not supported by the evidence. The proposed findings of fact set out in the second portion of the first sentence and in the second, third, fourth, and fifth sentences are rejected as merely summaries of testimony. The proposed finding of fact in the final sentence is rejected as not supported by the evidence. Paragraph 3: The proposed finding of fact in the first sentence was adopted in substance in Finding of Fact numbered 6. The remaining proposed findings of fact are rejected as argument. Paragraph 4: The proposed finding of fact in the first portion of the sentence is rejected as merely a summary of testimony; the proposed finding of fact in the second portion of the sentence is rejected as argument. Paragraph 5: Rejected as unnecessary. Paragraph 6: Rejected as unnecessary. Paragraph 7: The proposed finding of fact in the first portion of the sentence is rejected as unnecessary; the proposed finding of fact in the second portion of the sentence is rejected as not supported by the evidence. Paragraph 8: The proposed findings of fact in the first two sentences are rejected as legal argument. The proposed finding of fact in the last sentence is adopted in substance in Finding of Fact numbered 5. Paragraph 9: The proposed finding of fact in the first two sentences are rejected as unnecessary. The proposed findings of fact in the last two sentences are rejected as argument. Paragraph 10: Rejected as argument. Paragraph 11: Rejected as argument. Paragraph 12: Rejected as argument. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Richard R. Cullen, President 24-Hour Security, Incorporated 1515 South Federal Highway Suite 109 Boca Raton, Florida 33432 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32300-0250 The Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
