The Issue The issue is whether Respondent failed to maintain good moral character as a law enforcement officer and violated provisions of Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and if so, what penalty should be imposed.
Findings Of Fact By stipulation of the parties, Respondent was, at all times material to this proceeding, a certified law enforcement officer in the State of Florida, holding certificate number 194615. On May 27, 2003, Dorothy Shelton was a dispatch duty officer at the Havana Police Department in Havana, Florida. The police chief asked Shelton to sit near Respondent in a small room at the police station when he came in to peruse the contents of his personnel file. Respondent arrived, took the folder and sat down near Shelton. When Respondent asked if he could remove papers from the folder, Shelton told him that it was not permitted. Some of the papers in the folder were loose and Respondent asked if he could have copies made of some of the documents. Shelton told him that copies could be made upon Respondent's going nearby to the Havana City Hall, paying the requisite copying fees, obtaining a receipt for same, and returning to the police station. Eventually, Respondent, after more paper shuffling, returned the folder to Shelton and left the police station. As he went out the door, Shelton observed a piece of paper in Respondent’s pocket. Shelton made the deduction that the paper came from the personnel folder and quickly told the duty sergeant that Respondent had removed a piece of paper from the folder. The sergeant immediately looked in the folder, noticed that a returned personal reference questionnaire sent out by the department in the folder was missing. The sergeant immediately proceeded to follow Respondent with the intent of stopping him outside, but discovered that Respondent had left the area. The sergeant then telephoned Respondent’s residence and left a telephonic message for Respondent to return the call. At about 5:00 p.m., that same day, Respondent returned the call. When questioned by the sergeant, Respondent admitted taking the document and later destroying it. At the hearing, Respondent testified that he was motivated to remove the document from the folder because he had a pending job application with the Florida Highway Patrol and the document inappropriately stated he had been “Baker-Acted.” In the course of his testimony, Respondent exhibited remorse and confirmed again a written apology he had written to the Havana police chief. At the hearing, Respondent also defended his actions by relating that he had discussed the matter with the Havana city manager who allegedly told him to go remove the document from the folder. In the absence of testimony by the city manager, Respondent’s testimony in this regard is not credited. The record does not reveal how long Respondent has been a certified law enforcement officer. There is no evidence that Respondent has a prior disciplinary history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order placing Respondent's certification as a law enforcement officer on probation for a period of two years upon such reasonable terms and conditions as may be determined by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 13th day of May, 2004, 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 13th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Thompkins W. White, Esquire Igler & Dougherty, P.A. 1501 East Park Avenue Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue presented herein, summarily stated, is whether or not the Respondent has allowed, fostered, condoned and/or negligently overlooked the trafficking in illegal narcotics and controlled substances on or about its licensed premises and has failed to exercise due diligence in supervising its employees and managing its licensed premises so as to curtail or prevent the illegal trafficking of illegal narcotics at its licensed premises.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, posthearing memoranda and the entire record compiled herein, I hereby make the following relevant findings of fact. Del Sol Enterprises, Inc., is a corporate entity which holds alcoholic beverage license number 39-2182, series 2-COP, and does business as THE PARADISE INN, located at 3513 North 22 Street, Tampa, Hillsborough County, Florida. John Gatto, Jr. is the President and sole corporate stockholder of Del Sol Enterprises, Inc., the Respondent corporation. On several dates during the period July 26 through approximately August 26, 1983, Officer Keith Hamilton of the Division of Alcoholic Beverages and Tobacco (Petitioner herein) and Tampa Police Department Officers, Chester L. Copeland, Corporal Vincent Rodriguez and Officer Frank L. Swope, conducted several surveillance and/or investigations of the licensed premises. Specifically, on July 26, 1983, Officer Keith Hamilton, a beverage officer employed by the Petitioner since approximately December, 1980, who is trained in the enforcement of beverage and tobacco laws, entered the licensed premises for the purpose of ensuring that the beverage and tobacco laws were being enforced. Officer Hamilton observed two black males seated in the southeast corner of the bar smoking a marijuana cigarette. Officer Hamilton observed the fact that the cigarette being smoked by the two black male patrons was not cylindrical but was, rather, irregular in shape. Officer Hamilton also noted the smell of the burning substance and the manner in which it was inhaled. At no time did any employee of Respondent make an effort to stop the above- referred behavior by the two black male patrons which was observed by Officer Hamilton. The following day, July 27, 1983, Officer Hamilton again entered the licensed premises. He engaged the off-duty barmaid, Vickie Jean Washington, in conversation. During the conversation, barmaid Washington was approached by an unknown black female who inquired if she (Washington) possessed any marijuana for sale. Officer Hamilton thereafter asked Washington if she could obtain some marijuana for him, giving her ten dollars in U.S. currency for the purchase of same. Washington exited the premises and, upon returning, informed Officer Hamilton that there was no marijuana worth purchasing. Later that evening, Washington asked Officer Hamilton if he desired some cocaine. Officer Hamilton gave Washington twenty dollars in U.S. currency and Washington produced two foil packs containing a substance later analyzed and identified by the FDLE crime laboratory as cocaine. The cocaine purchased by Officer Hamilton was maintained in his custody and control until it was turned over to beverage officer John T. Allen. Officer Allen maintained custody of the substance until it was placed into the evidence vault at the FDLE crime laboratory in Tampa, Florida. Officer Allen is responsible for the transportation of all evidence from the Petitioner to the FDLE crime laboratory for analysis. During the transportation of evidence in his custody, Officer Allen ensures that all evidence in his custody is properly marked and sealed and FDLE crime laboratory technicians who are responsible for logging and transferring submissions to analysts for analysis, ensure that all submissions received follow the FDLE crime laboratory policies and procedures for the receipt of submissions for analysis. Additionally, FDLE chemists who receive submissions for analysis will not perform an analysis upon a submission which is in any manner a departure from the FDLE crime lab's policies and procedures. (Testimony of FDLE crime laboratory technicians Myrtis Smith and Priscilla Miller, and FDLE crime lab analyst Anthony Ziberna) On July 28, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity. Hamilton again met with off-duty barmaid Washington and observed Washington ingest the contents of two foil packages while standing at the bar (in the licensed premises) in open view. Officer Hamilton observed barmaid Washington break the substance of the foil packs upon the bar into small grains, lick the empty foil pack, and discard it on the floor. She proceeded to ingest the powder into her nose in a snorting manner. While on the premises that date, Officer Hamilton also purchased a small clear packet containing suspected marijuana from off-duty barmaid Washington. Officer Hamilton purchased the packet, which later was identified as marijuana by the FDLE crime laboratory, for ten dollars in U.S. currency. During the negotiation for the purchase of the marijuana, Officer Hamilton inquired of Washington if she was afraid to "do" the cocaine by the door and she responded that it was "okay." During the above transactions with off-duty barmaid Washington and her ingestion of the suspected cocaine, no one in the position of authority on the licensed premises attempted to stop either activity. After exiting the licensed premises, Officer Hamilton maintained complete custody and control of the suspected marijuana until such time as he turned it over to Officer Allen who properly marked the substance, maintained complete custody and control of it until it was turned over to the FDLE crime laboratory for analysis. On July 29, 1983, Officer Hamilton again entered the licensed premises. Upon entering the licensed premises, Officer Hamilton spoke with a black female who related that she was one of the managers of the licensed premises. While engaged in conversation with this black female, Officer Hamilton observed another black male snorting a "line" of suspected cocaine on the bar. Upon pointing this out to the female manager, no action was taken on her part to stop said activity. While on the licensed premises, Officer Hamilton was also approached by a black male who sold him a foil pack containing a substance, later identified as cocaine upon analysis by the FDLE crime laboratory, in exchange for ten dollars in U.S. currency. The substance was properly maintained under the custody and control of either Officers Hamilton, Allen, or analysts at the FDLE crime laboratory. On August 1, 1983, Officer Hamilton was again in the licensed premises. While there, Officer Hamilton observed several patrons smoking marijuana in the licensed premises. Hamilton inquired of the manager whether or not he had some marijuana and was advised that no one had any on this occasion. Officer Hamilton then departed the licensed premises. On August 2, 1983, Officer Hamilton again was on the licensed premises. While on the licensed premises, Officer Hamilton observed several patrons in the bar either smoking suspected marijuana or "doing" cocaine on the bar counter. On or about August 3, 1983, Officer Hamilton again entered the licensed premises and observed several persons engaged in the sale and use of suspected marijuana without any attempt to control such activity on Respondent's part. On or about August 5, 1983, Officer Hamilton again entered the licensed premises in an undercover capacity and observed approximately five or more transactions involving suspected marijuana and/or cocaine buys. While on the premises, Officer Hamilton purchased a package of suspected marijuana from a black male in exchange for five dollars in U.S. currency. Officer Hamilton left the bar with the suspected marijuana and maintained custody and control thereof until it was received by Officer Allen for marking and identification. Officer Allen thereafter proceeded to the FDLE crime lab where he submitted the substance for analysis. On August 15, 1983, Officer Hamilton again visited the licensed premises in an undercover capacity. While there, he observed barmaid Washington and several patrons smoking what he suspected to be marijuana. While that activity was ongoing, no one on Respondent's behalf attempted to stop such activity. On August 17, 1983, Officer Chester L. Copeland of the Tampa Police Department, Street Anti-Crime Section, entered the licensed premises as part of the same undercover operation. While there, Officer Copeland was approached by an unknown black male who asked Copeland if he desired to buy some cocaine. At this time, Officer Copeland purchased a foil packet of cocaine for the price of five dollars in U.S. currency. While on the licensed premises, Officer Copeland also observed the same individual make several drug sales in an open and unobstructed manner. Officer Copeland also observed several patrons in the bar smoking what he believed to be marijuana cigarettes. Officer Copeland has received training and is experienced in the detection and identification of controlled substances and their usage. Barmaid Washington, who was on the premises at the time, made no attempt to stop the above-referred activity observed by Officer Copeland. Upon leaving the licensed premises, Officer Copeland returned to the Tampa Police Department and administered a valtox chemical test upon the suspected cocaine purchased while at the licensed premises and the results thereof were positive for the presence of the controlled substance cocaine. Officer Hamilton also entered the licensed premises on August 23, 24 and 25, 1983. While on the premises on August 23, 1983, Officer Hamilton observed on-duty barmaid Washington smoke marijuana and snort what he suspected to be cocaine from the top of the east bar. While there, Hamilton approached an unidentified black male patron and asked if he could purchase some cocaine. This inquiry resulted in a sale of suspected cocaine in exchange for ten dollars in U.S. currency. Upon leaving the premises, Officer Hamilton maintained custody and control of the suspected cocaine until it was turned over to Officer Tim Allen. Officer Allen thereafter maintained control of the suspected cocaine until it was submitted to the FDLE crime laboratory for analysis. While on the premises on August 24, 1983, Officer Hamilton again observed off-duty barmaid Washington snort a powdery substance suspected to be cocaine. This activity by Washington as in the presence of a patron and was done on the bar corner in the licensed premises. At no time did anyone on Respondent's behalf attempt to stop said activity. While on the licensed premises on August 25, Officer Hamilton was approached by a black male from whom Officer Hamilton had purchased suspected cocaine on a prior occasion. Pursuant to an inquiry by that patron, Officer Hamilton proceeded to purchase a quantity of suspected cocaine in exchange for ten dollars in U.S. currency. Upon exiting the premises, Officer Hamilton proceeded to the Tampa Police Department where he delivered the suspected cocaine to Officer Tim Allen. After marking and receiving the suspected cocaine from Hamilton, Officer Hamilton submitted it to the FDLE crime lab for analysis. On August 23, 1983, Officer Copeland again entered the licensed premises in an undercover capacity. While there, he purchased a baggie of suspected marijuana from a black female in exchange for ten dollars in U.S. currency. While there, Officer Copeland observed on-duty barmaid Washington snort a white powdery substance suspected to be cocaine in addition to smoking what he recognized as a marijuana cigarette. Upon leaving the premises, Officer Copeland returned to the Tampa Police Department where he ran a valtox chemical test on the suspected marijuana which results were positive for the controlled substance marijuana. The licensed premises is situated in an area of Tampa whereby drugs and other drug-related problems are commonplace. Narcotics and other controlled substances are readily purchased in and around the immediate area where the licensed premises is situated. The FDLE crime laboratory has uniform policies and procedures respecting the acceptance of substances submitted for analysis. Prior to acceptance by the FDLE crime lab, submissions must be properly marked, identified, and sealed. Thereafter, the submission from the agency involved is placed into an evidence locker or vault where it is kept under lock until such time as it is removed for analysis by a lab chemist. Chemists for the FDLE crime lab will not conduct a chemical analysis on a suspected substance where there is any evidence of tampering with the submission or if the submission is not sealed upon receipt by the chemist. Finally, there was no evidence introduced herein that any of the submissions received (6) were in any manner tampered with prior to analysis by the chemists from the FDLE crime laboratory (Testimony of chemist Anthony Ziberna) Of six (6) submissions submitted by the Petitioner to the FDLE crime lab, only those submissions dated August 26 and August 2, 1983 proved not to be controlled substances under the provisions of Chapter 893, Florida Statutes. Jerry Cumbie, a self-employed contractor, has done substantial remodeling work on behalf of the Respondent corporation for many years. On approximately August 5, 2/ Mr. Cumbie started remodeling and other construction of the licensed premises in an effort to prohibit patrons from using the licensed premises for hiding controlled substances. Among the things Mr. Cumbie did was close off a section of the dance area (the north side of the bar) to prevent patrons from going into that area to smoke marijuana; the tying down of the ceiling tiles and erection of new paneling to keep patrons from hiding drugs behind loose walls. Harold Gillespie, the manager of the Paradise Inn, has been employed by the Respondent corporation for approximately 12 years. Mr. Gillespie is approximately five feet five inches tall and weighs approximately 290 pounds. He is the only black male manager at the Paradise Inn during the months June and July of 1983. Mr. Gillespie acknowledged that drugs were a problem in the area and that that problem overflows into the licensed premises. In an effort to curb that overflow, Messrs. Gillespie and Gatto met with representatives of the Tampa Police Department Vice Squad during June or July of 1983 and advised the vice employees of their problems with drugs in the area. Mr. Gillespie recalled that he spoke with a Sergeant Kester and a Captain Stallings of the Tampa Police Department. Mr. Gillespie recalled having apprehended numerous patrons in the licensed premises who were using illegal drugs on the premises. Mr. Gillespie ejects any patron from the licensed premises that refuses to stop the illegal use of controlled substances while on the premises. He has also taken other steps including turning off water in the lavatories to make it difficult for drug users to "setup" in order to conveniently use the drugs. Mr. Gillespie also sought the assistance of police officers from the local precinct and recalls speaking to an Officer Keys and others who work out of the local precinct in the area of the licensed premises. Mr. Gillespie fired Vickie Washington when she was arrested for drugs. Finally, Mr. Gillespie instructed employees to patrol the restrooms and other vacant areas to attempt to curtail patrons from the use of illegal or prohibited drugs in the licensed premises. John Gatto, Jr., the president and owner of the respondent corporate entity since 1965, has owned and operated as many as six (6) liquor establishments at one time. Presently, the Respondent operates four bars and has sold two within the last six months. Del Sol Enterprises has experienced one problem with the Division of Alcoholic Beverages and Tobacco prior to the subject incident. That problem occurred approximately 8 years ago when a janitor sold a bottle of liquor before opening hours. Mr. Gatto also recalls contacting Sergeant Jones of the Tampa Vice Squad and was assured that the vice squad would help to the extent practicable with the drug related problems. Mr. Gatto spent approximately $4,000 for remodeling the licensed premises in an effort to shut it off from patrons in areas which could not be easily supervised. Mr. Gatto acknowledges the existence of the drug problems in the licensed premises and in the area and concedes that more employees would possibly alleviate part of the problem. However, he counters that the establishment was losing money and that he did the best that he could do with the available help under the circumstances. Mr. Gatto employed Vickie Washington on approximately July 17, 1983. Manager Gillespie inquired of her background and got reports that she was "pretty clean." Mr. Gatto was unaware that Vickie Washington used drugs while on the licensed premises. Mr. Gatto recalled having found drugs in the cocktail tables; loose paneling areas of the licensed premises; and in pockets in the billiard tables. Mr. Gatto frequented the Paradise Inn approximately twice per month to check the manner in which the establishment was operating. He had no knowledge of the number of drug transactions that were occurring in the licensed premises and does not condone or otherwise foster the use of drugs in the licensed premises. Finally, Mr. Gatto tied the ceiling tiles down with wire and installed a booth in the entrance area to check who went in and out of the bar.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's alcoholic beverage license number 39- 2182, series 2-COP, doing business as the Paradise Inn, be suspended for a period of 6 months from the date of the final order entered herein. RECOMMENDED this 30th day of December, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983.
The Issue Whether respondent's alcoholic beverage license should be disciplined for alleged multiple violations of the Beverage Law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 22nd day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Howard M. Rasmussen, Department of Business Regulation Director 725 South Bronough Street Division of Alcoholic Tallahassee, Florida 32301 Beverages and Tobacco 725 South Bronough Street Aaron A. Green, Esquire Tallahassee, Florida 32301 410 S.E. 4th Avenue Gainesville, Florida 32602 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour. Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk." There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers 5 and 4 respectively. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered suspending the certificate of the Respondent for a period of six months. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816 The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not accepted to the extent that it argues that the incident involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense. The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time. Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire Post Office Drawer 1792 Lake City, Florida 32056-1792 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On August 28, 1987, Respondent was certified by the Commission as a law enforcement officer and was issued certificate number 19-87-002-04. At all times material to this case, Respondent was employed as a law enforcement officer with the City of Miami Police Department. Respondent was born in Marianna, Florida, but was reared in Miami, Dade County, Florida. Respondent has lived and worked in the Liberty City and Overtown areas of Miami for many years. Prior to becoming employed with the City of Miami Police Department, Respondent was graduated from Florida A & M University with a bachelor's degree in criminal justice. Additionally, he had completed police academy training and had served as a reservist in the U.S. Navy. According to Respondent, he is a natural leader and has acquired discipline from his military experiences. During the early morning hour of September 18, 1988, Respondent was on duty in a marked police vehicle patrolling an area of Miami in the vicinity of 22nd Street and Biscayne Boulevard. Respondent was armed, dressed in his police uniform, and accompanied by another uniformed officer, Efrain Grillo. At approximately 12:00 a.m. on that date, Respondent observed a white female standing in the curb area along Biscayne Boulevard. The Respondent later learned that the female's name was Linda MacArthur. At that time, however, he recognized her from a prior encounter he had had with her in the Overtown area approximately a month before. At that time, Respondent believed Ms. MacArthur to be a prostitute. Officer Grillo pulled the police car over to the curb where Ms. MacArthur was standing. Respondent directed her to enter the back seat of the vehicle and she complied. Prior to being directed to enter the vehicle, Ms. MacArthur was not placed under arrest, was not advised that she was being transported for questioning, and had not committed a criminal offense in the officers' presence. Neither Respondent nor Officer Grillo notified police dispatch that they were transporting a female passenger. Such notification is required by police policy. After Ms. MacArthur entered the police vehicle, the Respondent and Officer Grillo took her to a dead end street located at approximately 23rd Street and 2nd Avenue. Once there, the three individuals exited the police car and walked over to a dumpster that blocked the end of the paved street. After exiting the vehicle, Respondent obtained Ms. MacArthur's purse and went through it. Among the items enclosed in the purse were condoms and a small bottle of perfume. Officer Grillo took the perfume bottle and emptied it over Ms. MacArthur's upper torso. Next, Respondent asked Ms. MacArthur how she used the condoms. While the police officers observed, Ms. MacArthur opened the condom package, placed the condom in her mouth and began a sucking action. After a few seconds, she threw the condom down on the ground. While Officer Grillo spoke with Ms. MacArthur, the Respondent went to the police car and retrieved his flashlight. Officer Grillo asked Ms. MacArthur if she had underwear on. When she replied she did not, Respondent asked her if they (the officers) could see. Ms. MacArthur pulled her pants down to reveal her naked backside. When he returned from the car with the light, Respondent attempted to illuminate Ms. MacArthur's lower body but was unable to do so since the batteries in the flashlight failed. Officer Grillo then went to the police car and obtained a surgical glove which he placed on his hand. With Respondent present, Officer Grillo placed his hand in Ms. MacArthur's vagina and anal areas. Respondent observed Officer Grillo rub his hand in Ms. MacArthur's vagina and anal areas and saw her fidget at one point. Officer Grillo inserted his finger into Ms. MacArthur's vagina and rectum without her consent. The touching that is described in paragraph 10 was not done to effect a cavity search of someone under arrest nor was it performed for a bona fide medical purpose. Following the acts described above, the Respondent and Officer Grillo placed the Respondent into the police car and transported her back to the vicinity of Biscayne Boulevard. Ms. MacArthur then located an undercover police officer and disclosed the activities which had taken place. As part of the follow up investigation performed by the police, the perfume bottle and condom were retrieved from the site. Also in connection with the investigation of the allegation, an investigator went to the location of Respondent's day job and asked him to return to the police station for questioning. Respondent drove himself to the sexual battery office and spoke with Detective Mahon and Sgt. Sparrow. Prior to giving a statement, Respondent was advised of his rights by the officers. Respondent executed a written Miranda warning form. Respondent then gave an account of the activities which had occurred with Ms. MacArthur and Officer Grillo. This statement was given at approximately 3:21 p.m., September 18, 1988. Respondent gave a second statement to an assistant state attorney and Detective Mahon at approximately 5:41 p.m., September 18, 1988. That statement was made under oath and mirrored the one previously given by him. While Respondent did not see penetration of Ms. MacArthur's vagina and anal areas by Officer Grillo's hand, it is undisputed that he observed the gloved hand being placed in those specific areas as described above. The police did not coerce Respondent into making the statements given on September 18, 1988. Respondent was not placed under arrest, was not charged with a criminal offense, and has not been prosecuted for any alleged wrongdoing. Further, there is no evidence that Respondent is likely to be prosecuted for any alleged criminal act. In contrast, Officer Grillo was charged with criminal offenses related to the incident with Ms. MacArthur. Subsequent to the incident described above, Respondent resigned his employment with the City of Miami Police Department. Prior to that action, he had received several commendations for specific acts of excellent service, and had obtained satisfactory or very good performance evaluations for his work as a police officer. All acts which gave rise to the allegations of this case occurred during Respondent's rookie year as a police officer. Prior to being asked to return to the police station to give a statement regarding the allegations of this case, Respondent had not disclosed the acts perpetrated by Officer Grillo to another police officer.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. DONE and ENTERED this 25th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO CASE NO. 90-0919 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 and 2 are accepted. The first two sentences of paragraph 3 are accepted; the balance is rejected as irrelevant. Paragraphs 4, 5, and 6 are rejected as irrelevant. It is accepted that the Respondent and his partner intimidated the victim, Linda MacArthur and that she was fearful of being arrested. Paragraph 7 is rejected as contrary to the weight of the evidence. The victim complied with Respondent's directive to enter the police vehicle. Paragraphs 8 through 12 are accepted. Paragraph 13 is rejected as contrary to the weight of the evidence. It is accepted that Respondent asked the victim as to how she normally used the condom; it is not accepted that he made her suck it. See finding of fact paragraph 8. Paragraph 14 is rejected as contrary to the weight of the evidence. Respondent did, however, make the request described at a later time (prior to releasing the victim). The second sentence of paragraph 15 is accepted. The balance of that paragraph is rejected as irrelevant. Paragraphs 16, 17, 18, and 19 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 20 is accepted. Paragraph 21 is accepted. The first sentence of paragraph 22 is accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as contrary to the weight of the evidence. Respondent's account (that he did not touch the victim) is accepted. If the flashlight was pressed against the victim, the inference that Officer Grillo did that also is more credible. Paragraph 24 is rejected as contrary to the weight of the evidence. See, however, finding of fact paragraphs 10 and 17. Paragraphs 25 and 26 are rejected as irrelevant. Paragraphs 27 through 32 are accepted. Paragraphs 33 through 36 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. Respondent submitted a written closing argument. Copies to: Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rashad El-Amin Attorney at Law 4300 S.W. 92 Davie, Florida 33328
The Issue The ultimate issue to be resolved in this proceeding is whether the Respondent violated provisions of the Department of Law Enforcement Act of 1974, and if so, what disciplinary action is appropriate. Petitioner contends that the Respondent has engaged in acts which demonstrate that he has not maintained good moral character, and that his certification as a law enforcement officer should be permanently revoked.
Findings Of Fact The Respondent holds a certificate issued by the Criminal Justice Standards and Training Commission as a law enforcement officer. The certificate was issued in February, 1976. The Respondent was then employed with the City of Bunnell Police Department. The Respondent was a police officer with that department for a period of time, and was ultimately named Chief of Police. The Respondent is not presently employed with the Police Department in Bunnell, and is apparently not employed in the law enforcement field. During the time that he was employed as Chief of Police with the City of Bunnell Police Department, the Respondent engaged in immoral and illegal activities which included the use and distribution of marijuana, utilizing the services of prostitutes, and possession of moonshine whiskey. On at least two occasions, the Respondent delivered marijuana, apparently without charge, to a resident of Bunnell. On one of these occasions the Respondent was dressed in his police uniform, and made the delivery from his police car. Respondent smoked marijuana cigarettes with several residents of Bunnell. Respondent visited a house of prostitution in Daytona Beach with these same persons. The Respondent was observed haggling over price, and entering a private room with one of the residents of the house. On several occasions the Respondent openly displayed to his associates, a jar of what appeared to be moonshine whiskey, and what the Respondent stated was moonshine whiskey. The Respondent told an employee of the Flagler County Sheriff's Department, and an employee of the City's Corrections Department, that he had made the moonshine. In late 1978 or early 1979, approximately two pounds of marijuana was seized by officers of the Flagler County Sheriff's office. Four men who were apparently illegal aliens were arrested, and the marijuana and other matter were seized and placed in the vault at the Flagler County jail. The next day, the arresting officer returned to the vault in order to properly mark the marijuana as evidence. The Respondent had removed the marijuana from the vault. Respondent stated that he had disposed of it in a creek. Even if the Respondent did dispose of the marijuana in that manner, which is not a believable explanation, such action would be an improper manner of dealing with evidence that had been seized by law enforcement officers of another agency. While he was a police officer and Chief of Police with the City of Bunnell Police Department, the Respondent on several occasions disposed of stray dogs by shooting them and leaving their bodies in a creek. The Respondent apparently considered it easier and cheaper to dispose of stray dogs in this manner rather than taking them to an animal shelter. It is clearly an improper means of disposing of stray animals. While the Respondent was Chief of Police with the City of Bunnell, an officer with the Police Department advised the Respondent that he had observed gambling occurring at a tavern. The Respondent advised the officer to take no action regarding the matter as it was not a big deal and no one was complaining. The Respondent's actions, which include use of marijuana, prostitutes, and moonshine whiskey, illegally disposing of evidence and illegally shooting stray dogs, clearly demonstrate that the Respondent failed to maintain good moral character. His actions would inevitably have the effect of creating bad morale at the Police Department in the City of Bunnell and his actions did have that effect. It was alleged in the Complaint that the Respondent had marijuana that he kept in his closet at his home. This allegation was supported at the hearing by the testimony of a former baby sitter of the Respondent. The testimony has not been credited, and the allegation therefore has not been proven. It was six years ago that the baby sitter witness observed what she testified was marijuana, and she was at that time eleven years old. What she stated was marijuana was not identified by any other person. It was alleged in the Administrative Complaint that the Respondent observed an illegal drug transaction in process and failed to take any action with respect to it. These allegations are not supported by any credible evidence.
Findings Of Fact On January 3, 1984, the Florida Department of Education issued teacher's certificate no. 346776, Joint Exhibit No. 1, to respondent Henry Willie Williams, who still holds the certificate. Application Inaccurate The form application Mr. Williams completed to obtain his teacher's certificate reached the Department on October 7, 1983. Question V on the application form asked: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Yes No Joint Exhibit No. 2 Respondent checked the blank after "No," before signing and submitting the notarized form, "certify [ing] that all information pertaining to this application is true and correct." Joint Exhibit No. 2. Some three years earlier, on October 28, 1980, Judge John M. Marees had adjudicated respondent guilty of driving while intoxicated in violation of Section 316.193, Florida Statutes (1979), imposed a fine of $150.00, and assessed costs of $9.50. State of Florida vs. Henry Willie Williams, No. 80- 43114-MN (Duval County Court; Oct. 28, 1980). Joint Exhibit No. 3. A witness for the Department testified to his "belief that something of this magnitude, you would know whether you had or had not been arrested," (T. 62), but conceded it was possible for a person to "read that language that says 'other than minor traffic offense' and not consider a DUI [sic] to be other than minor." Id. Arrest and Conviction While employed by the Duval County School Board, respondent Williams received satisfactory evaluations. (T. 63) He was relieved of teaching duties, however, and reassigned to the Duval County School Board's media center, after his arrest on May 1, 1987, on charges of marijuana, cocaine and drug paraphernalia possession. (T. 56) Officers W. E. Copeland and Ben Moore effected the arrest while executing a search warrant, at an apartment in the 3200 block of Ricky Drive in Jacksonville. Present in the apartment with respondent Williams was Yvonne M. Buggs, who described Mr. Williams as a confidante. Ms. Buggs escaped arrest. Just whose apartment they were in at the time was not entirely clear. On July 23, 1987, Judge Parsons adjudicated respondent guilty of possession of cocaine in violation of Sections 893.03(2)(a) and 893.13(1)(e), Florida Statutes (1987), a felony of the third degree. No. 873999 CF (Fla. 4th Cir.; July 23, 1987) Joint Exhibit No. 4. At the same time, the court also adjudged respondent guilty of possessing less than 20 grams of cannabis, in violation of Sections 893.13(1)(e) and (f), Florida Statutes (1987), a misdemeanor of the first degree. No. 87-3999 CF (Fla. 4th Cir.; July 23, 1987). The court found respondent not guilty on the paraphernalia count, sentenced him to 90 days in the county jail on the marijuana count, and placed respondent on three years' probation on the cocaine possession count, with 90 days' jail time as a special condition of probation. Joint Exhibit No. 4. On appeal, the District Court of Appeal, First District, reversed respondent's conviction on marijuana charges, but affirmed the felony conviction for possession of cocaine. Henry Williams vs. State of Florida, No. 87-836 (Fla. 1st DCA Aug. 10, 1988) (reh. den. Sept. 19, 1988) pet. rev. pnd'g No. 73,180 (Fla; pet. filed Oct. 14, 1988)(pet.'s brief on juris. filed Oct. 26, 1988). The petition for review was filed only after the District Court had issued its mandate. A witness for the Department testified that he "believe[d] the conduct would seriously affect the effectiveness of Mr. Williams as a teacher . . . [because a]t this particular time in history where the drug issue is such a major one, and such a major one in the community, we feel our teachers should be above charges that have been made against them." (T. 59) By "conduct," he meant that respondent "certainly was present, he certainly was involved to some degree with narcotics as well as lying on the record to obtain a certificate." (T. 60)
The Issue The issue is whether Petitioner’s application for a license from the Florida Real Estate Commission was properly denied.
Findings Of Fact Petitioner, his Background, and the Application Leroy L. Baines, Jr., was born on October 31, 1985. Currently 29 years old, he is employed with a financial services company. He serves on the board of a non-profit organization called Butterfly Foundation Group. The organization works with underprivileged and at-risk youth. He also works with J.J.’s Boxing Club and Global Village, both non-profit entities. In 2005, Mr. Baines pled no contest to a criminal traffic infraction: operating a motor vehicle without a valid license (“Criminal Traffic Infraction No. 1”). He was adjudicated guilty and sentenced. Respondent’s Ex. No. 1 at 00028. The following calendar year, 2006, Mr. Baines was convicted of driving while his license was cancelled, suspended, revoked, or he was disqualified from holding a license (“Criminal Traffic Infraction No. 2”). Id. at 00022. In 2008, in the U.S. District Court for the Southern District of Florida, Mr. Baines pled guilty and was adjudicated guilty of two federal crimes: 1) conspiracy to interfere with interstate commerce by robbery, and 2) carrying a firearm during and in relation to a crime of violence (the “Federal Criminal Offenses”). Id. at 00013. Mr. Baines was sentenced to 55 months imprisonment for the Federal Criminal Offenses on June 18, 2008. He served his sentence in prisons located in Florida, Texas, and North Carolina. His sentence expired on June 30, 2014, and he was discharged from supervision on September 3, 2014. Id. at 00040. On April 11, 2014, Respondent received Mr. Baines’ application for licensure as a real estate associate (the “Application”). He answered “Yes” to Background Question 1, which asks, “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction . . . ?” Id. at 00010. After the background questions in the Application, the Application states, “If you answered ‘YES’ to any question in [the background questions], please refer to Section IV of the Instructions for detailed instructions on providing complete explanations, including requirements for submitting supporting legal documents.” Id. In the Application’s “Section IV(b) – Explanation(s) for Background Question 1,” Petitioner listed the Federal Criminal Offenses. For one of the two offenses under “Penalty/Disposition,” he wrote “Time Served”; for the other, he wrote “55 months.” Id. Under “Description” as to each of the two Federal Criminal Offenses, Petitioner wrote, “5 years Supervised Release.” Id. Despite the Application’s detailed instructions that require criminal traffic infractions to be listed (“This question applies to any criminal violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses . . . .” Id.), Petitioner failed to list the two Criminal Traffic Infractions. Petitioner’s Case Mr. Baines testified that his application should be granted because he has cooperated with Respondent by providing everything that was asked of him during the Application review process. Although he had not included the Criminal Traffic Infractions on the written Application, he freely admitted during the hearing it was his responsibility at the time he made out the Application to report them and to offer any relevant explanation of them. With regard to the Criminal Traffic Infractions, Mr. Baines testified he spent 30 days in the Orange County Jail. He seeks leniency in this application process based on his age at the time of the offenses which he claimed, at first, was 16. Noting the difference between his birthday and 2005 and 2006, Mr. Baines conceded during cross-examination that he was several years older than 16 at the time of the Criminal Traffic Infractions. Mr. Baines elaborated on the Federal Criminal Offenses explaining that he had fallen in with former high school friends whom he had not seen for some time when they recruited him to drive the get-away car in a robbery. He stated that at the time of the crime he was in possession of two guns both of which he had been carrying legally prior to the crime: a nine millimeter Glock and a .40 caliber handgun. Mr. Baines’ time in prison was spent without any violations of prison rules, according to his testimony, and he completed the post-release program successfully. His success in serving his time is the basis, Mr. Baines asserted, for his release from federal supervision so promptly after the expiration of the sentence. No documentation of “good behavior” in prison, however, was offered at hearing. In an attempt to demonstrate rehabilitation, Mr. Baines referred to his service to the Butterfly Foundation, J.J.’s Boxing Club, and the other two non-profit organizations with which he works that serve at-risk youth in the Pompano and Fort Lauderdale areas. He also averred that he had been cleared by the Department of Children and Families (“DCF”) to work with underprivileged youth for cheerleading and gymnastics although he offered no supportive documentary evidence from DCF. Mr. Baines did submit to Respondent as part of his application three documents related to rehabilitation. The first extolled his work as an employee. The second was written by a teacher at Stranahan High School who is a fellow basketball player at pick-up games in a public basketball court in Plantation, Florida. The third was written by his pastor at the Living Waters Sanctuary in Oakland Park, Florida. The authors of the letters all write highly of Mr. Baines. In support of his case for rehabilitation, Mr. Baines testified that after his conviction for the Federal Criminal Offenses, he had had only one slip-up: a urinalysis (“UA”) positive for marijuana, a substance he had used as a youth. Mr. Baines claimed that the UA was conducted only because those supervising his post-release case sent him for the testing after Mr. Baines had voluntarily acknowledged his recent use of marijuana. But for the single marijuana incident, Mr. Baines asserted under oath that his record after his conviction, in prison and out of prison during a post-incarceration discharge period, had been spotless. His admirable conduct, he testified, is what led to the court to promptly release him from federal supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner’s application for licensure as a real estate sales associate. DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2015. COPIES FURNISHED: Leroy L. Baines, Jr. 4808 Northwest 8th Court Lauderhill, Florida 33317 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Profession Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Darla Furst, Chair Real Estate Commission Department of Business and Profession Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 (eServed)
The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact On June 21, 1991, Aaron Foreman (Petitioner) was convicted of one count of "possession of THC with intent to deliver" in the Circuit Court of Walworth County, State of Wisconsin, Case Number 90CR00080. At the time of the arrest, the Petitioner was a student at the University of Wisconsin in Whitewater. He resided with several other students in the upstairs apartment portion of a residence. On or about February 1, 1990, local Whitewater law enforcement officials, apparently investigating one of the roommates for burglary, executed a search warrant and entered into the apartment where the Petitioner was living. During the search of the apartment, law enforcement officers discovered a quantity of marijuana in the apartment and bedrooms of the residents. The Petitioner had a refrigerator in his bedroom, within which law enforcement officers discovered a large plastic bag containing 26 smaller plastic bags, each containing a quantity of marijuana. The total weight of the plastic bags of marijuana within the Petitioner's refrigerator was identified in the charging document as approximately 126 grams. In Count One of the charge, the Petitioner and three other persons (apparently the roommates) were jointly charged with possession with intent to deliver more than 500 grams of THC, an element of marijuana. In Count Four of the charge, the Petitioner was individually charged with possession with intent to deliver 91 grams of THC. The record of the hearing does not establish the reason for the difference between the weight of the marijuana allegedly discovered and the THC quantities with which the defendants were charged. According to the Petitioner's testimony at hearing, the Petitioner participated in marijuana use, and bought and sold marijuana within a "small circle of friends" and his roommates. On June 21, 1991, the Petitioner entered a plea of "no contest" to Count Four as part of an agreement to resolve the drug possession charges, and as stated previously, was convicted of felony under Wisconsin law. According to the Judgement of Conviction, Count One of the charge was dismissed. As a result of the plea agreement, the Petitioner was sentenced to nine months in jail, two years of probation, and a fine of approximately $2,700. The Petitioner served the jail sentence in a work release program, continued to attend college and obtained an undergraduate degree in sociology from the University of Wisconsin. The Petitioner paid the fine imposed by the sentence and successfully completed the probationary period as of September 19, 1993. Subsequent to completion of the sentence, the Petitioner became employed as a licensed social worker in Wisconsin. From 1993 to 1999, the Petitioner was employed by "Southeastern Youth and Family Services," as a social worker. The Petitioner's employment evaluations range from "very good" to "outstanding." In July 1999, the Petitioner underwent a background screening prompted by his application for employment by Eckerd Youth Alternatives, Inc., a program that, in part, provides services to young persons involved in the juvenile justice system and funded through contract with the Florida Department of Juvenile Justice (Department). Based on the conviction, the Department notified Eckerd Youth Alternatives, Inc., that the Petitioner was disqualified from employment. The Petitioner requested that the Department review the disqualification. The Department responded by letter dated June 19, 1999, advising that the desk review would be granted and identifying the information that the Petitioner was required to submit to facilitate the review. The Petitioner responded to the June 19 letter by supplying the requested information to the Department. The matter was apparently reviewed by a "Priscilla A. Zachary, BSU Supervisor" for the Department, who forwarded the file along with a cover memo to Perry Turner, the Department's Inspector General. As Inspector General, Mr. Turner is the person authorized by the Department to make decisions on disqualification exemption applications. Ms. Zachary's cover memo incorrectly identifies the crime for which the Petitioner was convicted and states that the Petitioner's June 21, 1991, conviction was for "Possession with Intent to Deliver" more than 500 grams of THC. According to the Judgement of Conviction, Count One of the charge, wherein the Petitioner and other persons were jointly charged with possession with intent to deliver more than 500 grams of THC, was dismissed. On August 5, 1999, Mr. Turner determined that the Petitioner's application for exemption should be denied. Mr. Turner based his decision on his belief that the Petitioner's felony conviction was for an amount of marijuana beyond that which Mr. Turner believes could be reasonably identified as being for "personal use" and which was intended for distribution. By letter dated August 5, 1999, the Petitioner was notified of the Department's decision by letter and advised of his right to challenge the denial in an administrative hearing. During the hearing, the Petitioner testified as to the events leading to his conviction and identified his efforts at rehabilitation. At the hearing, the Petitioner testified that his initial experience with marijuana occurred in approximately 1988, when he entered the University of Wisconsin at Whitewater. The Petitioner testified that at the time of the 1990 arrest, he was an "immature" college student who recreationally used marijuana within his circle of friends and with whom he sold or exchanged marijuana. Other than the Petitioner's admission, there is no evidence that the Petitioner actually sold marijuana. There is no evidence that the Petitioner was arrested or charged with the sale of marijuana. There is no evidence that the Petitioner was a part of any continuing marijuana distribution organization. There is no evidence that, other than the arrest at issue in this proceeding, the Petitioner has ever been arrested for any other reason. Review of the charging documents suggests that the charge of "intent to deliver" was based on the quantity of the marijuana found in the apartment and the apparent candor with which the residents dealt with the law enforcement officials who executed the search warrant and investigated the situation. The Petitioner's arrest occurred approximately eleven years ago. The Petitioner's conviction was approximately ten years ago. The Petitioner completed the probationary portion of his sentence more than seven years ago. There is no evidence that there was any physical injury or harm done to any individual as a result of the Petitioner's conviction. There is no evidence that granting the Petitioner's request for exemption presents a danger to the Petitioner or to any other person. The Petitioner has continued with his education and in December 2000 received his master's degree in Criminal Justice from the University of Wisconsin in Milwaukee. The Petitioner has also sought to obtain a pardon from the Governor of Wisconsin. By letter dated August 28, 2000, the Governor's Pardon Advisory Board notified the Petitioner that it was recommending to the Governor that a pardon be granted. Although the vote by the Board was not unanimous, the majority of the members believed that the pardon should be granted "based on positive adjustment, lack of subsequent criminal justice system contacts, non-violent nature of the crime, and valid job concerns." As of the date of the hearing, the Governor of Wisconsin had not acted on the Board's recommendation to grant the Petitioner's pardon request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice grant the request of Aaron Foreman for exemption from employment disqualification. DONE AND ENTERED this 26th day of February, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of February, 2001. COPIES FURNISHED: Aaron Foreman 10500 West Fountain Avenue Apartment No. 411 Milwaukee, Wisconsin 53224 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, 2737 Centerview Drive Tallahassee, Florida 32399-3100
