Findings Of Fact Petitioners are inmates presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a prison facility maintained by the Florida Department of Corrections. The superintendent of Polk Correctional Institution issued a directive, which is dated February 18, 1982, and entitled "Interoffice Memorandum". The memorandum is directed to all inmates and relates to visiting procedures. It provides: Effective Saturday, March 6, 1982, inmates will no longer be permitted to receive visitors on both Saturday and Sunday of the same week. Visiting policy in the past has permitted inmates to receive visits on both Saturday and Sunday of the same week, but not from the same visitor. This change means that you must receive all your visitors on either Saturday or Sunday. If your (sic) receive a visit on Saturday, you will not be permitted to receive another visit on Sunday. This change in visiting procedure will help alleviate the overcrowded situation in the visitor's park and allow you and your family to visit together more comfortably. The memorandum applies only within Polk Correctional Institution. It was issued by the superintendent without any effort being made to promulgate it as a rule. No effort was made to publish notice, to give affected persons an opportunity to be heard, nor to conduct hearings and allow input from members of the public. The superintendent did not construe the memorandum as being a rule. He considered it authorized under the provisions of Section 945.21, Florida Statutes; Department of Corrections Rule 33-5.01, Florida Administrative Code; and Department of Corrections "Policy and Procedure Directive" Number 3.04.12, which was issued April 8, 1981. Rule 33-5.01 provides: The Secretary shall authorize each Superintendent to adopt policies stating the conditions and circumstances under which visits may be conducted including: the regular visiting hours of the insti- tution; the items which visitors may take in or out of an institution, and what items are contraband; what persons or groups may visit, and in what numbers; and the specific standards of conduct which shall prevail during such visits. All visiting policies promulgated by the Superintendents shall be subject to approval by the Secretary. Department of Corrections Policy and Procedure Directive 3.04.12 provides at Paragraph V.A. 1: Visiting days shall normally be designated as Saturday and Sunday between the hours of 9:00 a.m. and 3:00 p.m. Where unusual circum- stances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or when facilities permit, visiting may be permitted more than one day. The directive provides at Paragraph V.B.: There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation when physical facilities are restrictive. However, reasonableness should be exercised when possible in regard to the number of visitors that would be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant dis- tance, especially when such visits are on an infrequent basis. This policy directive has not been promulgated as a rule. It is not published in the Florida Administrative Code, does not bear a numerical designation that accords with rules of the Department of State, and appears to have been adopted on authority of Department of Corrections Rules 33-4.02(), 33-3.06, and 33-5, Florida Administrative Code. None of these rules sets out visiting conditions with the specificity found in the policy and procedure directive. Prior to the March 6, 1982 effective date of the Superintendent's memorandum, which is the basis for this proceeding, inmates at Polk Correctional Institution were allowed to receive visitors on both Saturday and Sunday. This prior policy was based upon memoranda that had been issued by the superintendent in the same manner as the February 18, 1982 memorandum.
Findings Of Fact The Respondent herein, Dennis W. Scott, worked for the Department of Transportation, Bureau of Tolls, from October, 1982, to October, 1986 in various positions at several different toll facilities in the Orlando area. At the time in issue, Respondent was working at the BeeLine East toll facility as a toll collector supervisor. His regular duties included supervision of other collectors and paperwork related thereto. Respondent had been working at that facility for some time and had had, according to his supervisor, Pam Yates, a repeated absenteeism problem. Admittedly, Respondent was, at the time, a cocaine user and missed work periodically because of both his use of cocaine and the rehabilitation treatment he was receiving. When he had to miss work, he would ordinarily take such leave as he had accrued. Ms. Yates felt that he constituted an absenteeism problem, however, and had reached the conclusion that she could not rely on him to be present at any given time. The duty schedules that she prepared were often missed by Respondent and it would be necessary for her to call in part time help to fill in. She could not rely on him. Respondent was scheduled to work Saturday through Monday, October 11- 13, 1986. He did not come to work on those days and, since he had neither sick nor annual leave accrued to cover him, was placed in a leave without pay status since his absence was unauthorized. There is some question as to whether he was told not to report to work on those days. He and his wife both contend that during the period of October 7-11, 1986, Mrs. Yates called his home several times regarding his schedule. On October 10, 1986, according to Mrs. Scott, Mrs. Yates advised her to tell Respondent not to come in for his regularly scheduled work on October 11, 12, and 13, 1986. According to Mrs. Scott, Mrs. Yates indicated that as far as she was concerned, Respondent would be fired but that they had to wait for Mr. Guthrie, the Regional Manager, to come back from vacation to take appropriate action. On Monday, October 13, 1986, Scott contacted Mr. Guthrie by phone and asked him if a decision had been made to relieve him from duty. At this point, according to Mr. Scott, Mr. Guthrie indicated that a decision had been made to terminate him and that he would deliver a letter to that effect to Respondent that afternoon. Though this conversation allegedly took place on October 13, the letter was not dated until October 14, and was not delivered to Respondent until October 17, 1986. Respondent contends that at no time did he intend to resign or abandon his position nor did he ever indicate he did to any of his various supervisors. He contends he did not go to work on October 11-13 because of the phone call received from Mrs. Yates telling him not to come in. At all times during this period, Respondent contends, he was willing and ready to come to work and told Mr. Guthrie this when he spoke with him on the phone. Mrs. Yates tells a somewhat different story regarding the days leading up to the time in issue. Respondent took 2 hours of sick leave on October 7, as well as 6 hours of annual leave. On Wednesday, October 8, she tried to reach Respondent because he had not shown up for work the previous day but calls' to his home were unanswered. He did not report in for duty that day, either, though he called Mrs. Yates at home that night. During that call, he told her that his personal possessions were being repossessed. Respondent was not scheduled to work on Thursday or Friday, October 9 or 10. When Mrs. Yates asked him if he was coming in to work on Saturday, October 11, he hemmed and hawed and finally said, "I guess." At that point she told him she needed to know if he was coming in or not, but he could not definitely say at that time. She did not call him at any time on Thursday or Friday, October 9 or 10, to see if he was coming in on the 11th. Mrs. Yates admits to talking with Respondent's wife on Thursday, October 8th, about some credit cards but not about work. It was during this period that Mr. Berry, Chief of the Bureau of Tolls, called her at home to talk about Respondent's attendance record. He advised Mrs. Yates to go to work on Saturday, October 11, and if Respondent showed up, to send him home. However, Respondent did not come in on October 11, nor did he call to request time off. When Mr. Guthrie, who had been on leave during this period, came back to work, Mrs. Yates discussed Respondent's work record with him but they did not discuss taking action to terminate his employment. They had previously discussed Respondent's lack of reliability, but at no time did she ever indicate that she wanted him fired. At all times when Respondent was absent because of or in treatment for his substance abuse, he was placed on leave for the period of absence. Had Mr. Scott shown up for work on October 11, 1986, he probably would have been fired, but he did not show up. Respondent's absence was not the result of a direction or suggestion from Mrs. Yates but of his own volition and, based on the evidence available, the absence on October 11, 12, and 13 was unauthorized. Respondent is now employed elsewhere though he was unemployed for several weeks after he was notified of his abandonment of position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Dennis W. Scott, be deemed to have abandoned his position with the Department of Transportation. RECOMMENDED this 7th day of October, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 7th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4474 The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties. For the Petitioner None For the Respondent 1. Accepted and Incorporated in FOF 1. 2. Accepted and Incorporated in FOF 2. Accepted and Incorporated in FOF 3. 5. Rejected as contra to the weight of the evidence. 6. Accepted. 7.&8. Accepted and Incorporated in FOF 9. 9. Accepted and Incorporated in FOF 9. 10. Accepted and Incorporated in FOF 5. 11. Accepted and Incorporated in FOF 3. 12.-15. Rejected as contra to the weight of the evidence. 16.&17. Accepted and Incorporated in FOF 5. 18.&19. Rejected as contra to the weight of the evidence. 20. Accepted Irrelevant. Accepted. Irrelevant. COPIES FURNISHED: Charles Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben R. Patterson, Esquire Patterson & Traynham 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32315 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P. E., Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether Petitioner was treated in a discriminatory manner?
Findings Of Fact At all times relevant, Respondent, the Wackenhut Corporation, was under contract with Florida Power Corporation to provide around-the-clock security at the Crystal River nuclear power plant. Sometime in January, 1985, Petitioner, Jude L. Stewart, became aware that Respondent needed to train and employ persons to work as nuclear armed security guards. On January 10, 1988, Petitioner filled out an application for employment which indicated that she was applying for the positions of guard, elevator operator and firewatch. The position of "firewatch" involves walking around and checking fire doors and identifying potential fire hazards. Petitioner participated in a training class with fourteen other applicants. Of the fifteen applicants in the class, three were females, including Petitioner. All applicants were told that only four full-time security guard positions would be available at the end of the training class and that the four positions would be given to the four applicants who received the highest grades during training. Applicants were graded on academic and practical tests, including a physical fitness test. The remaining applicants who successfully completed the training would be employed "part-time," or on an as needed basis, as guards, firewatch persons and elevator operators. The use of the work "part-time" is misleading, since these employees in some cases worked more than forty hours a week. The employees would be utilized in the areas needed, depending on the level of activity going on at the plant and the absenteeism of the full-time employees. Early on in the application and training process, Respondent's agents became concerned with Petitioner's weight and physical appearance. At the time of her application Petitioner was 5'6" tall and weighed 265 pounds. Petitioner was found to be physically capable to perform the duties of guard by Respondent's physician. Prior to starting her training, Petitioner was working on a weight-loss program with a doctor. Petitioner and her doctor had set a weight goal of 185 pounds to be reached in six months. Respondent's agents were made aware of this by Petitioner and they told Petitioner that she would be allowed to complete the guard training, but that she would not be employed as a guard until she reached the 185 pound goal. Petitioner's first attempt to complete the physical fitness test ended in failure. The physical fitness test consisted of three parts which had to be completed within certain time periods. One part consisted of walking up an incline for approximately one-quarter mile. Another part consisted of climbing 20 feet on a 40-foot ladder on the side of a tank. The ladder had a cage-like surrounding beginning at 7 feet and ending at the 20-foot mark. The third part of the test consisted of climbing up four flights of stairs. The fourth flight was at a height equivalent to that of three or four floors on an average building. In her first attempt at the physical fitness test, Petitioner was unable to complete the ladder portion of the test during the time allowed, and the test was ended at that time. Petitioner attributed her inability to climb the ladder to a fear of heights. Petitioner was given the opportunity to take the physical fitness test again with a different instructor. Petitioner first completed the one-quarter mile walk. At the end of the walk Petitioner was breathing very heavily, her face was flushed and she was physically shaking. The instructor was concerned for her health and asked if she was capable of going on. Petitioner responded she was and they proceeded to the stairwell. Petitioner climbed three flights of stairs with some difficulty. Going up the final flight of stairs, she took three steps and stopped. Petitioner's breathing was extremely rapid and she stated something to the effect that she could not go on. With encouragement from the instructor and a passerby, Petitioner managed to climb the remaining steps by using the hand rail to pull herself up. After reaching the top, Petitioner able to go down the stairs and complete the test within the allotted time. Petitioner completed the ladder test within the allotted time, although with some difficulty, and came very close to exceeding the time limit. When training was completed, Petitioner's academic standing was seventh out of fifteen and her overall standing, including academic, practical and physical fitness, was ninth out of fifteen. Petitioner was graded in the lower third of her class on physical agility. The top four applicants were offered full-time guard positions. Two of the four declined the offer and the positions were filled with the next two highest graded applicants. Petitioner was offered a full-time position as an elevator operator and was told that she would be allowed to work as a guard once she met her weight goal. The rest of the applicants were offered part-time positions rotating as guards, elevator operators and firewatch. After one day on the job as an elevator operator Petitioner resigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued dismissing the Petition for Relief filed by Petitioner. DONE and ENTERED this 6th day of April, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 6th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2390 The Respondent submitted proposed findings of fact which are addressed below. Respondent's Paragraph Number Ruling and RO Paragraph First eight words accepted. RO 2 Rest of sentence is irrelevant. Accepted. RO 3 Accepted. RO 5 Accepted. RO 7 True but irrelevant. Accepted. RO 5 Accepted. RO 8 True but irrelevant. True but irrelevant. Accepted. RO 10 Rejected. Petitioner successfully completed the physical fitness test on her second attempt, albeit with some difficulty. Accepted. RO 10 First nine words true but irrelevant. Rest of sentence rejected. While this may be true there is no competent evidence of what type of appearance acts as a deterrent. Rejected. While this may be true from Respondent's viewpoint, it is not a fact based on competent evidence. 15. Accepted. RO 11 16. Accepted. RO 3, 11 17. Accepted. RO 6, 11 18. Irrelevant 19. Accepted. RO 11 20. Accepted. RO 11 21. Accepted. RO 11 22. Accepted. RO 12 COPIES FURNISHED: Jude Lea Stewart Post Office Box 2695 Crystal River, Florida 32629 Duncan Dowling, III, Esquire Jeffrey M. Fleming, Esquire ROGERS, DOWLING & BOS Post Office Box 3427 Orlando, Florida 32802 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact As Needed Temps, Inc., Respondent, provides temporary employees to various businesses. Respondent is not licensed under Chapter 493. Respondent Mary E. Carter is president of Respondent. She is also the director of operations for SOS Security, Inc., whose principal place of business is at the same location as that of Respondent. SOS Security, Inc. holds a Class "B" license. In August, 1987, David Christy, who was a drywall laborer, was working temporary jobs that Respondent had found for him. On August 8 or 9, 1988, Respondent assigned him to SOS Security, Inc., which placed Mr. Christy as a security guard at a local bicycle racetrack. While working as a security guard, Mr. Christy wore the guard uniform of SOS Security, Inc. Mr. Christy was not a licensed security guard. SOS Security, Inc., which billed its customer for the security service, paid Respondent for Mr. Christy's services, and Respondent paid Mr. Christy. At least one other individual entered into a similar arrangement with Respondent and SOS Security, Inc. Willy Dorsey, whose security guard license had expired in 1986, was paid by Respondent and SOS Security, Inc. at different times for security work that he performed during an unspecified year. These incidents were not isolated. Respondent invoiced SOS Security, Inc. a total of over $13,000 in three invoices from March 20, 1987, through May 8, 1987, for "providing guard service."
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 30th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1402 1-2. Rejected as not finding of fact. 3-10. Rejected as recitation of evidence and not findings of fact. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Mary E. Carter President As Needed Temps, Inc. 6239 Edgewater Drive Suite N-5 Orlando, Florida 32810 Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32399-0250 =================================================================
The Issue The issues presented in this case concern the question of whether Respondent has abandoned his position as a Highway Maintenance Technician I employed by Petitioner.
Findings Of Fact Prior to January 23, 1990 Respondent had been employed by Petitioner as a Highway Maintenance Technician I. He was a permanent employee. He did not report to work on that date or upon subsequent dates for which he was obligated to report, those dates being January 24 through 26, 1990 and January 29, 1990. The reason he did not report was based upon his incarceration for indecent exposure. Jessie Calvin Rhoden, Highway Maintenance Supervisor II and the immediate supervisor to Respondent, testified that the members of his crew, to include Respondent, were responsible for calling no later than one hour before their time to report for work if they intended to be absent. This is in keeping with the policy of the Petitioner as announced in an excerpt page from that policy found as Petitioner's exhibit 4. The employee handbook containing the policy statement was received by Respondent prior to the days upon which he was absent. In particular he had received the employee handbook on April 20, 1983 as evidenced by his signature on a copy of the acknowledgment of receipt of the employee handbook which is Petitioner's exhibit 5 admitted into evidence. Rhoden did not approve leave prior to January 23, 1990 that pertained to the days upon which the Respondent was absent, nor did he approve of that leave at any time during the absence or after the absence. No other official with Petitioner gave approval for Respondent to be absent. Respondent's sister contacted Rhoden at 7:45 a.m. on January 23, 1990 and asked if the Respondent had reported to work. Rhoden told the sister that if the Respondent contacted her that the Respondent should call personally to request leave time. On the evening of January 24, 1990 the Respondent's father, Shirley Odell Richardson spoke with Rhoden and told Rhoden that whatever the problems were that the Respondent was experiencing, that Respondent would be back to work on Thursday, January 25, 1990. Previous to this occasion when the Respondent wished to have leave he would ask for that leave a week or two in advance of the time that he expected to be absent from his job, unless some emergency arose and in those instances Respondent would call and request leave at the time of the emergency. Alex Hamilton Slaughter is a Highway Maintenance Supervisor III, who is in line of authority the supervisor of Rhoden. Ordinarily it is his responsibility to approve leave for Respondent. He also had a conversation with Respondent's father, as he recalls on January 23, 1990 at which time the father stated that the Respondent had gotten into some form of trouble. The father said that the problem would probably clear up quickly and Respondent would be back at his job on January 25, 1990. In this conversation Respondent's father made known the fact that the Respondent was in jail. A further conversation was held between Slaughter and the father on Thursday or Friday afternoon of the first week of Respondent's absence at which time the father said that the problem had not cleared up, but he expected the son to return to work momentarily. Larry Collins is the Assistant Maintenance Engineer who is the supervisor of Slaughter. He oversees all operations of Petitioner's Ellis Road Facility in Jacksonville, Florida where Respondent was assigned. He identified that at the time the Respondent was absent it was not the policy of the Petitioner to approve leave for individuals who had been incarcerated. He gave two specific examples of that policy that had transpired prior to the circumstance of the Respondent. They are outlined in Petitioner's exhibits 1 and 2 related to Gary D. Smith and Gregory E. McCray respectively. Those individuals were incarcerated and were relieved of their employment based upon the fact that they missed work due to incarceration and were considered to have abandoned their jobs. This policy of the agency is an acceptable arrangement in the circumstances pertaining to Respondent. That is to say, Petitioner is not obligated to approve leave for persons who have been incarcerated. This is particularly true in the instance where Respondent has accepted the reason for his incarceration as being legitimate. Petitioner through Mr. Collins identified that the agency considers that incarceration is not grounds for mitigation of the circumstance and an excuse for the absence. He draws the contrast between that situation and one in which a person has been hospitalized wherein the employee would probably have leave approved. Petitioner's exhibit 3 is a copy of the time sheet of the Respondent during the relevant time period showing his absence without authorized leave. In his remarks at hearing Respondent identified the fact that he had been arrested on January 23, 1990. He stated that the authorities would not allow him to contact his parents and tell them that he was being arrested. Eventually he was allowed to make contact with his family which led to his father's conversations with Respondent's supervisors to explain the absence. The father had talked to the supervisors about allowing Respondent to take leave during the incarceration, but that request was not favored. In his testimony the father identified the fact that he had contacted the employer to make known and have them understand the reason for his son's absence. As the father established, his son was in jail for one and a half weeks because he could not make bail. He then served three weeks house arrest at which time he could have returned to his job; however, this was beyond the time that would have been acceptable for the Respondent to take up his duties again as viewed by the Petitioner. On January 30, 1990 a letter was sent to the Respondent identifying the fact that the Petitioner deemed him to have abandoned his job position. A copy of that letter may be found as Petitioner's exhibit 6. It refers to Rule 22A-7.010(2)(a), Florida Administrative Code, as grounds for the action. It identifies the fact that the Respondent had missed five days and forty hours of work through unauthorized leave. Respondent sought a hearing from the Secretary, State of Florida, Department of Administration and the case was referred to the Division of Administrative Hearings for disposition. This led to the final hearing that has been described.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: l. The Petitioner, Terry Wooden, a black male, was hired by the Respondent, State of Florida, Department of Corrections, on December 5, 1980 as a Correctional Officer I at River Junction Correctional Institution. River Junction Correctional Institution (RJCI) is a secure facility responsible for the care, custody and control of certain inmates. Correctional Officers are assigned to security posts which are located throughout the facility. Some "inside" security posts are located within inmate dormitories. Outside perimeter security posts, which are small tower-like buildings, are located along the perimeter fence and are the last observation posts between containment and possible inmate escape. For security reasons, the Respondent prohibits sleeping on the job and requires its correctional officers to remain alert at all times. Supervisors (generally employees holding the rank of sergeant) often make "rounds" of the facility wherein security posts are visited to ensure that the officer on, duty at that post is alert. RJCI procedure requires that an officer on duty at a security post "challenge" a supervisor or other correctional officer who approaches the security post. When a supervisor enters a dormitory, the officer assigned to that post is required to challenge that person by immediately leaving the officer's station (located within the dormitory) to meet the approaching person. If the officer is on the telephone or engaged in some activity, it is acceptable for the officer to wave his hand to the approaching person or indicate in some other manner that he is aware that someone has entered the area. When a supervisor approaches an outside security post, the officer on duty is required to meet the approaching individual at the door of the building. Discipline of employees at RJCI is based on a progressive system. During the time the Petitioner was employed at RJCI, a sergeant was required to report a sleeping/unalertness violation by a correctional officer to the shift lieutenant (supervisor of all employees on a particular shift). There were no written guidelines and the reporting officer was required to exercise some discretion in determining whether he believed that an offense had been committed. On the first incident, the shift lieutenant would counsel the employee about the infraction, but no written report was made. On the second report of an offense to the shift lieutenant, a written report of the incident would be prepared by either the reporting officer or the shift lieutenant. The shift lieutenant would interview the employee about the alleged violation and refer the report to the department head (correctional officer chief). The department head would then submit the written report to the personnel manager with recommendations. Upon receiving a written report of an infraction from the department head, the personnel manager would gather information pertaining to the offense and give it to the superintendent, along with recommendations for disposing of the case. The superintendent would then schedule a "predetermination conference", confront the employee with the allegations and determine the disciplinary action to be taken. Prior to 1979 and until June 1982, L. C. McAllister, a white male, was superintendent at RJCI; from June 1982 to December 10, 1982, George Ragans, a white male, was acting superintendent at RJCI; from December 13, 1982 through August 1983, Ken Snover, a white male, was superintendent at RJCI. Each superintendent was responsible for determining the particular penalty to be imposed using guidelines set forth in Chapter 33, Section 9 of the Rules of Personnel. Generally, the employee's first sleeping/unalertness violation reported to the personnel manager, and ultimately, the superintendent, would result in counseling (oral reprimand); the second violation would result in a written reprimand; the third violation would result in a suspension; the fourth violation would result in a longer suspension or dismissal; and, the fifth violation would result in dismissal. Major Miles, a white male, is a department head and functions as the overall supervisor of correctional officers at RJCI. Miles assigns posts and shifts to correctional officers. Major Miles usually assigns new correctional officers to midnight shift after they complete orientation. After Petitioner completed his orientation period, he was placed on midnight shift (12:00 p.m. to 8:00 a.m.) and assigned to Post 23 in "G" dormitory. The Petitioner completed his one year probationary period on December 5, 1981. The Petitioner was assigned an overall rating of "satisfactory" by his shift supervisor, Lieutenant Carter, a black male. The evaluation stated that Petitioner got along well with supervisors and fellow employees. In December of 1981, Lieutenant Childs, a white male, became the Petitioner's shift supervisor. Initially, the Petitioner and Lieutenant Childs enjoyed a friendly relationship. Lieutenant Childs drove the Petitioner to work on several occasions and both men shared a common interest in sports. On December 13, 1981 an officer made a routine check of "G" dormitory and found Petitioner asleep in the officer's station. The Petitioner was counseled about this first infraction. Shortly after Petitioner's sleeping incident of December 13, 1981, Major Miles changed Petitioner's post assignment from dormitory to Perimeter Post 3. Major Miles changed Petitioner's post because several inmates had complained to him that a lot of stealing was taking place and that Petitioner was not watchful enough to prevent it. The inmates also complained that Petitioner's counseling style seemed like harassment. After Petitioner's post was changed from "G" dormitory to Perimeter Post 3, his relationship with Lieutenant Childs began to turn sour. The Petitioner was "concerned" because he believed that Lieutenant Childs had input into Major Miles' decision to reassign him. On May 10, 1982, Lieutenant Childs found the Petitioner unalert at Perimeter Post 3. The Petitioner received a written reprimand for this second infraction. On August 19, 1982, Sergeant Pollock, a black male, found Petitioner unalert while on duty at Perimeter Post 3. Sergeant Pollock reported the incident to Lieutenant Childs but suggested that Petitioner be counseled rather than "written-up". Sergeant Pollock believed that a lesser punishment might encourage Petitioner's improvement. Lieutenant Childs told Pollock to think about it for a couple of days. On August 21, 1982, Sergeant Parks and Sergeant Tharpe found Petitioner unalert at his post. When Sergeant Pollock discovered this incident, he changed his mind about his previous recommendation to Lieutenant Childs. Childs told Pollock to submit a written report. The Petitioner was suspended for 3 days for these third and fourth sleeping/unalertness infractions. On September 2, 1982, Lieutenant Childs completed an employee rating evaluation on Petitioner for the period September 1, 1981 to September 2, 1982. Petitioner was given an overall rating of "satisfactory", but Lieutenant Childs noted several areas of concern. Lieutenant Childs mentioned that Petitioner seemed to interpret counseling sessions "as personal threats conspired, for no bonafide reason to harass him." However, Lieutenant Childs went on to note that Petitioner's attitude and work performance was improving and that Petitioner was "making a definite and positive effort to correct his shortcomings." On October 28, 1982 an inmate escaped from RJCI. At the time of the inmate's escape, Petitioner was on duty at Perimeter Post-3 and William Chessher, a white correctional officer, was on duty on Perimeter Post 2. Major Miles, the department head, recommended that both men be disciplined for being unalert. Because the inmate's escape route took him through Perimeter Post 3's primary area of responsibility, Major Miles recommended that Petitioner be dismissed; Miles recommended that Chessher be reprimanded or suspended because the escape route was along Perimeter Post 2's secondary area of responsibility. On November 18, 1982, Acting Superintendent George Ragans held a predetermination conference concerning Petitioner's October 28, 1982 unalertness charge. Mr. Ragans found that the offense was substantiated but did not follow Major Miles' recommendation that Petitioner be dismissed. Ragans suspended the Petitioner for fifteen (15) days for this fifth sleeping/unalertness violation. Immediately following the November 18, 1982 predetermination conference, Ragans suggested to Petitioner that Petitioner should request a shift change. However, Petitioner explained to Ragans that he had a new baby at home, was taking college courses and did not want a shift change at that time. When Petitioner returned to work on December 16, 1982 after his fifteen (15) day suspension he had decided that he wanted a shift change. Petitioner went to the control room to find out how to submit a shift change request. In the control room, Petitioner spoke with a female officer concerning the procedures for requesting a shift change. The female officer agreed to type a shift change request for Petitioner. The female officer typed the request and gave Petitioner a copy. Shift change requests are directed to the shift lieutenant, in this instance, Lieutenant Childs, who then passes the request to Major Miles for final action. The female officer told Petitioner that she would put the original request for shift change in Lieutenant Childs' box in the control room. For some reason, Lieutenant Childs never received Petitioner's written request for shift change. In January 1983, the Petitioner spoke with the new superintendent, Ken Snover, regarding a shift change. Mr. Snover told Petitioner to proceed through the change of command and if he was still not satisfied, to return and speak with him again. One night, while on duty sometime after December 16, 1982 Petitioner asked Lieutenant Childs about a shift change. Lieutenant Childs told Petitioner that there were going to be a lot of changes made. Petitioner spoke to Major Miles on one occasion after December 16, 1982 and asked about a shift change. Major Miles told Petitioner to submit a written request. Major Miles never received a written request for shift change from Petitioner. Sometime prior to August 1, 1983, Petitioner was temporarily assigned to "G" dormitory and worked with officer Gano, a white male. Gano complained to Lieutenant Childs that Petitioner was sleeping on duty. Before Gano complained to Childs, Childs had received allegations of Petitioner being asleep from other correctional officers. Because of those complaints, Childs had instructed two sergeants to closely review Petitioner's dormitory work habits. On one occasion, the sergeants told Lieutenant Childs that Petitioner appeared to be asleep while on duty. On August 1, 1983, Lieutenant Childs instructed officer Gano to let him know if Petitioner was sleeping by giving a pre-arranged signal. Officer Gano found Petitioner asleep or "non-alert" and gave the pre-arranged signal. Lieutenant Childs entered the dormitory without Petitioner challenging him and found Petitioner unalert. Lieutenant Childs wrote a report on Petitioner's sixth sleeping infraction. Superintendent Ken Snover held a predetermination conference concerning Petitioner's August 1, 1983 unalertness charge. Snover ordered the Petitioner's dismissal, effective August 18, 1983. Steve Williams, a white Correctional Officer I, was caught sleeping on April 20, 1981 and was given an oral reprimand for this first offense. Williams was caught sleeping again on June 21, 28, and July 31, 1981. Because of the personnel manager's vacation a predetermination conference letter could not be sent until after the third occurrence and all three violations were addressed at the same conference. Williams was given a written reprimand for this second sleeping infraction. Thomas Jackson, a black Correctional Officer I, was caught sleeping on October 29, 1982 and was given an oral reprimand for this first offense. On May 13, 1983, Jackson was caught sleeping a second time and was given an official reprimand. On August 10, 1983, Jackson was caught sleeping a third time and was suspended for one week (5 working days). Jackson was offered and accepted a shift change, from midnight to evening shift. Dennis Edwards, a white Correctional Officer I, was caught sleeping in July 1982 and was counseled for this first offense. In Apri1 1983, he was caught sleeping again and was given a written reprimand. In July 1983, Edwards was suspended for 5 working days because of his third offense of sleeping while on duty. Larry Garrett, a black Correctional Officer I, was counseled for sleeping on duty for his first offense, but no documentation was made to his personnel file. On September 5, 1981 Garrett was caught sleeping a second time and was given a written reprimand. On December 3, 1981, Garrett was caught sleeping a third time and was suspended for three days. Garrett was offered a shift change, but declined because he was taking classes and had a newborn baby. On December 16, 1981, Garrett was caught sleeping for the fourth time and was terminated. Michae1 Weeks, a white Correctional Officer I, was caught sleeping on June 9, 1981 and was given a written reprimand for this first offense. On May 10, 1982 he was caught sleeping a second time and was given a written reprimand. Weeks was caught sleeping again on August 1, 8 and 10, 1982. Weeks was given a predetermination conference letter, but before the hearing was held, he was caught sleeping again on August 18, 1982. Weeks voluntarily resigned on August 18, 1982. Warren Harris, a black Correctional Officer I, was caught sleeping on November 29, 1979 and was given a written reprimand for this first offense. On June 13, 1981, Harris was caught sleeping again and was given another written reprimand. On September 9, 1981, Harris was caught sleeping for the third time and was suspended for three days. Harris was caught sleeping again on October 28 and 29, 1981 for his fourth offense. Harris was given a letter of termination, but resigned before the termination took effect. Harold Bailey, a white Correctional Officer I, was caught sleeping on June 14, 1982 and was counseled for this first offense. Bailey was caught sleeping again on July 17, 1982 and was given a written reprimand. On January 5, 1983 Bailey was caught sleeping on duty for the third time and was suspended for five days. On April 2, 1983, Bailey was charged with a fourth offense but Superintendent Snover found the allegations "unsubstantiated." Nevertheless, Bailey was counseled and documentation of the incident was placed in his personnel file. Bailey was offered a shift change but he refused it. Bailey's shift was later changed. In an effort to assist employees who were working midnight shift and having problems staying awake, the personnel manager and the superintendent would sometimes offer the employee a shift change or encourage the employee to seek a shift change. At various times, both black and white employees were offered, or encouraged to seek shift changes when they were having trouble on midnight shift. From time to time, correctional officers would submit requests for shift and/or post changes. Major Miles, the department head, usually made shift or post changes based on an individual's written request and the needs of the institution to have certain security posts staffed. Major Miles made some shift and post changes without a written request and over the objection of the employee if it was required by the needs of the institution. Shift and post changes at RJCI were given to both white and black employees in a substantially similar manner. Lieutenant Childs, upon receiving a request for a shift or post change, was required to forward the request to Major Miles for final action. Lieutenant Childs would forward a request for shift or post change with a favorable recommendation only if he believed the employee "earned" the recommendation by good performance on his current shift or post. As shift lieutenant, Childs was authorized to make some temporary post re-assignments for employees on his shift. During the last several months of Petitioner's employment, Petitioner was permanently assigned to Perimeter Post 3, but Lieutenant Childs temporarily assigned him to a post in "G" dormitory. While Petitioner was temporarily assigned to "G" dormitory, Lieutenant Childs became aware through "the grapevine" that Petitioner wanted to have Mondays and Tuesdays off, rather than Tuesdays and Wednesdays. Because different post assignments, carried different days off, a change in days off would have required a post change. Lieutenant Childs told Sergeant Pollock to tell Petitioner that he would arrange for Petitioner to have the desired days off as soon as possible if Petitioner's work performance improved. In January 1983 a new Department of Corrections directive required that certain correctional officers receive 160 supplementary hours of training. A majority of the staff at RJCI was required to complete the supplemental training. From January 1983 through August 1983, personnel at RJCI were engaged in the on-going training program. One set of training classes were scheduled from 9:00 a.m. to 1:00 p.mand another set of classes were scheduled from 6:30 p.m. until 10:30 p.m., five days a week. During the period from January 1983 through August 1983, shift and post changes were made primarily to allow correctional officers the opportunity to attend the training sessions as required. As superintendent of RJCI, Ken Snover conducted "predetermination conferences" wherein he was required to review allegations, determine whether or not the charges were substantiated and then decide what disciplinary action to take. Superintendent Snover did not apply a lesser standard of proof at predetermination conferences where Petitioner was charged with sleeping/unalertness violations than he applied when white officers were involved. On one occasion Snover found that the allegations of sleeping were not sufficient to warrant disciplinary action against two white employees, Harold Bailey and Walter Dean, where the allegation was made by one sergeant but denied by both correctional officers. At the predetermination conferences that Snover conducted where Petitioner was charged, the allegations were all substantiated by one or more individuals and denied only by Petitioner. Perimeter Post 3 as well as other perimeter posts, are isolated outside security posts and are generally not considered to be the most desirable security post assignments. Both black and white officers were assigned to Perimeter Post 3 and other perimeter posts. A slight majority of the correctional officers permanently assigned to perimeter posts were black. There was no indication that correctional officers were assigned to Perimeter Post 3 on a racial basis nor as a "set up" to achieve dismissal.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint and the petition for relief filed by Mr. Terry Wooden. DONE and ORDERED this 8th day of September, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day September, 1986. COPIES FURNISHED::: Drucilla E. Bell, Esq. Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Marva Davis, Esq. 379 E. Jefferson Street P. O. Drawer 551 Quincy, FL 32351 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Blvd. Tallahassee, FL 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esq. General Counsel Florida Commission on. Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 3230 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 21. The first sentence is rejected as a recitation of testimony. The second sentence is rejected as not supported by Competent substantial evidence. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 20 and 30. Matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 4. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence and/or misleading. Rejected as not supported by competent substantial evidence. 14A. Rejected as subordinate. 14B. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. 15A. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 15B. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. 16A. Adopted in Finding of Fact 20. 16B. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 5. Matters not contained therein are rejected as subordinate and/or misleading. Rejected as misleading and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 25 and 26. Partially adopted in Findings of Fact 27,^ 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Finding of Fact 26. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 26, 27, 28 and 29. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as misleading and/or not supported by competent substantial evidence. Partially adopted in Findings of Fact 39, and 41. Matters not contained therein are rejected as subordinate, misleading and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as not supported by competent substantial evidence. (No paragraph 34). Partially adopted in Finding of Fact 43. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 48. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Rejected as subordinate and/or not supported by competent substantial evidence. Rejected as subordinate. Rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as subordinate. Adopted in Findings of Fact 12 and 15. Partially adopted in Findings of Fact 16 and 17. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 10. Partially adopted in Finding of Fact 18. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 5 and 6. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. - Adopted in Findings of Fact 19 and 20. Partially adopted in Finding of Fact 17. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 22 and 23. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 24. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 27. Matters not contained therein are rejected as subordinate. Rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 27, 28 and 29. Adopted in Finding of Fact 44. Adopted in Finding of Fact 48. Partially adopted in Finding of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Findings of Fact 39 and 47. Partially adopted in Finding of Fact 47. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 35. Adopted in Finding of Fact 34. Adopted in Finding of Fact 36. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 33. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 38.
The Issue The issue presented is whether Respondents were negligent by failing to provide proper supervision and control of two security guard employees, as alleged in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken against them, if any.
Findings Of Fact At all times material hereto, Respondent U.S. Security has held a Class "A" Private Investigative Agency License No. A00-01448; a Class "B" Watchman, Guard or Patrol Agency License No. B00-01042; and a Class "DS" Guard School License No. DS89-00077. At all times material hereto, Respondent Bahram Sedaghat has held a Class "C" Private Investigator License No. C87-00645, a Class "DI" Guard Instructor License No. DI89- 00275, a Class "G" Statewide Gun Permit No. G88-00869, and a Class "M" Manager License No. M90-00046. At all times material hereto, Respondent Bahram Sedaghat has been the Vice-President of Respondent U.S. Security, and Juan Cabrera and Octavio Valdez were employees of Respondent U.S. Security. At all times material hereto, Respondent U.S. Security has provided supervision of its security guards (including Cabrera and Valdez) through patrol supervisors, assistant area managers, and area managers. Pursuant to that three-tier level of supervision, every guard post was checked by a supervisor almost every night as part of Respondent U.S. Security's regular supervisory procedures. For several years, Respondent U.S. Security had in effect a contract with Flamingo Plaza, an industrial complex in Hialeah, Florida, to provide unarmed guard services to Flamingo Plaza. That contract was in effect on October 23, 1989. When Cabrera was first employed by Respondent U.S. Security, he was assigned to perform unarmed guard services at a construction site for the Carnival Cruise Lines building. On his first day at that post, construction workers noticed that he was armed. When Brian Pierce, the area manager, came to the post approximately one hour later, the construction workers advised Pierce that Cabrera was armed. Pierce immediately reprimanded Cabrera, reminding Cabrera that the post was an unarmed guard post and that Cabrera was prohibited from being armed while on duty at that post. He made Cabrera lock his gun in his car. Thereafter, no one saw Cabrera with a firearm at that unarmed post. Cabrera was subsequently reassigned to perform guard services at the unarmed guard post located at Flamingo Plaza. On his first day at that assignment, James Cee, the property manager at Flamingo Plaza, saw Cabrera with a firearm while on duty and reported that to Brian Pierce. Pierce reprimanded Cabrera in front of Cee and instructed him not to return to the post with a firearm since it was an unarmed post. Thereafter, there were no further complaints regarding Cabrera carrying a firearm while at Flamingo Plaza although Cabrera continued his assignment at Flamingo Plaza for approximately three or four more months. After Pierce reprimanded Cabrera for appearing at Flamingo Plaza on his first day with a firearm, however, on one occasion Mark McCray, the assistant area manager, saw Cabrera at Flamingo Plaza wearing a jacket while on duty. Visible below the jacket was the bottom of a holster. Cabrera was specifically ordered by McCray not to wear a holster while on duty at an unarmed post. Cabrera was not armed on that occasion. There were no other reports that Cabrera wore a holster at Flamingo Plaza on any other occasion. On October 23, 1989, a shooting incident involving Cabrera took place at the Flamingo Plaza. Upon being notified of the incident Respondent U.S. Security immediately suspended Cabrera and fired him on the following day. Criminal charges were filed against Cabrera based on that shooting incident, and those charges remained pending at the time of the final hearing in this cause. Petitioner immediately conducted an investigation of the incident and of Respondent U.S. Security's procedures for supervision of its unarmed guard employees. At the conclusion of the investigation, Petitioner determined there were no violations of the statutes regulating the security guard industry and closed its file. Thereafter, Cabrera, while the criminal charges were pending against him, appeared on television and gave statements which directly contradicted the evidence obtained by Petitioner in its investigation. As a result of those statements made by Cabrera and pressure exerted by the news media, Petitioner reopened its investigation and subsequently issued the Administrative Complaint which is involved in this proceeding. Respondents were not aware that Juan Cabrera or Octavio Valdez had firearms in their possession while on duty on October 23, 1989, when their assigned duties did not require firearms. Further, there is no reason that Respondents should have known that Cabrera or Valdez had firearms in their possession on that occasion. It is standard procedure for Respondent U.S. Security's supervisors to provide all security guards with "post orders" prior to each guard beginning a new post assignment. Among other things, this document notifies the guard as to whether the post calls for armed or unarmed personnel. Respondent U.S. Security ensures that the guard reads and understands the post orders prior to beginning his shift. On October 23, 1989, Respondent U.S. Security had procedures set up for the hiring, training, and supervision of security guards, both armed and unarmed. Respondent U.S. Security had in place procedures for taking disciplinary action against employees. Those disciplinary guidelines included the exercise of judgment by the supervisory personnel involved. If an employee did something prohibited, the employee was specifically reprimanded and instructed not to engage in that conduct again. If the employee engaged in the same conduct again, he would be fired immediately for disobeying direct orders. Respondent U.S. Security did not have a specific policy directed at a guard appearing at an unarmed post with a firearm or with only a holster because such conduct simply did not occur. Respondent U.S. Security's procedures for supervision of security guards comply with or exceed the procedures utilized in the industry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty of the allegations contained in the Administrative Complaint filed against them and dismissing that Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of January, 1991. LINDA M. RIGOT 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 30th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4840 Petitioner's proposed findings of fact numbered 1 and 3-7 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2 and 10 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 8 and 9 have been rejected as being irrelevant to the issues involved in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed findings of fact numbered 1-12 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Henri C. Cawthon, Esquire Florida Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Norman S. Segall, Esquire Bentata Hoet & Associates and Zamora Segall Lacasa & Schere 3191 Coral Way Third Floor, Madison Circle Miami, Florida 33145 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact On or about September 15, 1987, the Applicant filed an application for conditional use approval to remove a condition of prior conditional use approval granted on November 18, 1986, that requires a closing time of midnight. The Applicant seeks to remain open until 2:00 a.m. At a meeting of the Planning and Zoning Board on October 13, 1987, the Board voted unanimously to deny the Applicant's request to remove the midnight closing restriction. The Applicant has filed a timely request for hearing of the October 13, 1987, decision of the Planning and Zoning Board. The property in question in this application is located at 735 Bayway Boulevard, in Bayside Shores Subdivision, Clearwater Beach, Florida. This property is zoned general commercial (CG) for which conditional use approval is required for the on-premises sale of alcoholic beverages. The Applicant purchased the restaurant located on the subject property in November 1986, and there has been a substantial reduction of complaints and trouble with boisterous patrons under the current ownership compared with conditions prior to November 1986. Public witnesses confirm that noise and other disturbances have significantly decreased since November 1986, but they request that the midnight closing restriction remain so that the disturbing conditions, previously experienced with a 2:00 a.m. closing, do not return. However, the current owner, Adriano Battaglini, is committed to retaining the present image of Mama Nina's, which is primarily a restaurant, rather than a bar or lounge. Even if allowed to remain open until 2:00 a.m., Mama Nina's will continue to be primarily a restaurant. He has been experiencing 65-68 percent food sales at Mama Nina's, and caters to a mature, adult clientele rather than students and persons under 25 years of age, as was the case under prior ownership. The Applicant's restaurant is located in a commercial area which has heavy traffic on occasion. No evidence was presented indicating that traffic will increase if Mama Nina's is allowed to remain open until 2:00 a.m. Although there are some other restaurants on Clearwater Beach which close at or before midnight, most restaurants and lounges do remain open until 2:00 a.m. The Applicant has shown that Mama Nina's does not generate excessive or disturbing noise, light glare or traffic, and has very adequate parking. As currently operated, the restaurant is compatible with the neighborhood, and remaining open until 2:00 a.m., under current conditions, will not have an adverse impact on the neighborhood. The subject property is located within 500 feet of residences, and is, in fact, across the street from several residences. Ordinance 4470-87 applies to this application since said Ordinance, by its terms, governs applications filed subsequent to September 3, 1987.
Findings Of Fact The Petitioner, James Lewis Shelton, applied for licensure as a Class "F" unarmed guard. Shelton answered Question 13 on the application yes, reporting an arrest for disorderly (conduct) in 1968. The records check of the Department of State revealed that Shelton had been arrested for the offenses listed in the denial letter, Exhibit 2. Shelton admitted that this record was true and accurate. Shelton's supervisor on his security job, who is also his minister, Dr. Robert A. Plank, testified regarding his knowledge of Shelton. Plank had been Shelton's minister for approximately two years, and for the last five months Shelton has worked for him as a security guard. Plank stated that when he became aware of the charges against Shelton he investigated them as thoroughly as he could. He then questioned Shelton about the arrests. He found that Shelton could only remember these events vaguely after Plank refreshed his memory with facts from documents Plank had obtained from the authorities. Plank had found in working with Shelton as his minister and his supervisor that Shelton was mentally slow. Shelton is an orphan with a sixth grade education, who has been an itinerate for much of his life. Shelton only was able to remember his marriage to a woman after Plank refreshed his memory with facts from the letter of denial. Shelton is currently employed as a dishwasher and as a guard with the company by which Plank is employed. Shelton works hard, follows his instructions and is a good worker. Plank concluded that because of his mental slowness Shelton had not remembered these arrests, and had not willfully misrepresented the information on his application. Plank's wife, who is the shift supervisor for whom Shelton works, substantiated her husband's testimony. Shelton has lived in St. Petersburg for 12 years, the the records there reflect no arrests. Shelton is mentally slow and has difficulty recalling past events. This finding is based upon the testimony of the Planks and observations of Shelton's demeanor at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of State issue a license as an unarmed guard to James Shelton; however, the Hearing Officer would recommend that this applicant's records be annotated that an armed guard license not be issued without rehearing, and this his employer be directed not to employ Shelton as an armed guard without licensure as such. DONE and ORDERED this 15th day of February, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. James Lewis Shelton 8894 68th Street, North Pinellas Park, Florida
