The Issue The issues for consideration in this case concern separate notices to show cause placed against the named Respondents alleging violations of Chapter 509, Florida Statutes (1990 Supp.), and Chapter 7C, Florida Administrative Code. These notices date from January 25, 1991. The notices to show cause seek to impose fines against the corporation and the Nelsons.
Findings Of Fact On May 14, 1990 Windy Shores Trading Post Inc. conveyed property at 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, to Windy Shores Aero Research, Inc. That latter corporation is the Respondent in DOAH Case No. 91-0681. Again for ease of reference Windy Shores Aero Research, Inc. shall be referred to as "the corporation." The Respondent corporation is a Florida corporation. No one identified as having appropriate authority to request a hearing for the corporation either on an expedited basis or pursuant to the normal notice time prescribed by Section 120.57(1)(b)2, Florida Statutes, has asked that the corporation be heard in defending accusations made in the notice to show cause pertaining to DOAH Case No. 91-0681. The hearing request described in the preliminary statement made by Eric Nelson does not constitute a legitimate request for hearing by the corporation. This determination is made based upon the record established at hearing both in testimony and documentary evidence. All that has been established concerning the corporation's position is that, according to Petitioner's Exhibit No. 16 in DOAH Case No. 91-0681, the corporation through certified mail return receipt requested was served with the emergency order and associated notice to show cause. At all times relevant to the inquiry, a building a 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, was operated as a seven unit, transient rental, public lodging establishment. The last license of record for that property had been issued in the name of Roy E. Midkiff, d/b/a Layton Apartments under license no. 74-01494H-1. This license was issued under the authority of Chapter 509, Florida Statutes. Neither the corporation nor the Nelsons have ever sought or been issued a license pursuant to Chapter 509, Florida Statutes, which would allow those Respondents to operate the public lodging establishment at 30 South Grandview Avenue. It can be inferred that the property in question passed from Midkiff eventually ending up with the Respondent Corporation after the conveyance from Windy Shores Trading Post, Inc. on May 14, 1990. By history, the City of Daytona Beach became aware of the subject property and its problems back in March, 1990. In particular, the City of Daytona Beach through its Code Enforcement Division was concerned about the addition of a living unit at the premises without appropriate permission. Concerns about this were addressed to Carol E. Nelson at 2036 South Ocean Shores Boulevard in Flagler Beach, Florida by certified mail return receipt requested dated March 26, 1990. A copy of this notice of violation may be found as Petitioner's Exhibit No. 1. This was followed up by an affidavit of violation and notices of hearing addressed to Carol E. Nelson, who in this affidavit of violation and notices of hearing was referred to as President, as she had been in the March 26, 1990 correspondence. This description of the violation of adding a living unit and other matters related to that from the point of view of the Code Enforcement Board of the City of Daytona Beach may be found in Petitioner's Composite Exhibit No. 2. These documents under Petitioner's Composite Exhibit No. 2 run from April, 1990 to January 29, 1991. In would appear that the presidency which was being attributed to Carol Nelson was that affiliation with Windy Shores Trading Post, Inc., the former corporate owner of the subject property. The violation concerning the addition of an unauthorized living unit at the subject facility remains pending before the City of Daytona Beach. When the tax records were prepared for 1990 the City of Daytona Beach became aware of the change in the ownership of the subject property as described in Petitioner's Exhibit No. 3 listing the corporation as the owner and the corporate headquarters as 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Fred Holmes of the Daytona Beach Code Administration Division and Inspector/Supervisor for that Division, in his testimony, addressed the history of the property from the point of view of the City of Daytona Beach. When he was on the property on January 29, 1991, the persons who were on the property other than tenants were the Nelsons. Holmes is also aware that on January 30, 1991, an application for an occupational license to operate the subject property was made with the City of Daytona Beach and was signed by Carol Nelson in the interest of the corporation. A copy of this occupational license application can be found as Petitioner's Exhibit No. 5. It points out that the property is owned by Winifred L. Nelson of 2038 South Ocean Shore Boulevard, which has been shown to mean 2038 South Ocean Shore Boulevard in Flagler Beach, Florida. The record on balance supports the fact that Winifred L. Nelson, who is Eric Nelson's mother, owns the corporation. The application and Petitioner's Exhibit No. 5 admitted into evidence refers to a transfer of ownership of the subject property from Windy Shores Trading Post to the corporation. On January 29, 1991, the City of Daytona Beach communicated with Petitioner in the person of Barbara Palmer, Director, notifying the Petitioner that effective January 25, 1991, the City had placed the property in question off limits by notice that it was unsafe and its use or occupancy prohibited. A reinspection on January 29, 1991, pointed out that the violations about which the City, as well as the Petitioner, were concerned related to safety and occupant welfare had not been corrected. The correspondence of January 29, 1991, from the City to the Petitioner found as Petitioner's Exhibit No. 4 speaks of those matters. A list of deficiencies found by the City corresponds in many respects to allegations in the notices to show cause. According to Fred Holmes an inspection was made on February 1, 1991 to speak to the application for occupational license and the results of that inspection were not known at the point of hearing. Petitioner's Exhibit No. 6 admitted into evidence related to the City of Daytona Beach and its inspection dated January 11, 1991, points out deficiencies that are common to the concerns in the notices to show cause. Notice of these deficiencies was provided to Carol and Eric Nelson at the time of this January 11, 1991 inspection. Inspector Holmes was of the opinion that the apartment building would not have met local code requirements of the City of Daytona Beach. The City was continuing to express concerns about the unauthorized occupancy of the one apartment added without permission. The City at that point expected corrections to be made and the removal of that improvement, i.e. the additional apartment. Inspector Holmes is unaware of any changes over time in persons who are responsible for the conduct of the business at the property in that he has no documentation in his records concerning such changes. In particular, he is not aware of any permission from Winifred Nelson to Eric Nelson allowing him to act in her behalf. At the hearing Holmes was unaware that Winifred Nelson was the authorized agent for the corporation. Charles Casper, Environmental Health Specialist for the Petitioner, made an inspection at the premises on June 8, 1990, and found certain deficiencies which are set out in the Composite Exhibit No. 7. Among the highlights of this inspection was the identification of the fact that the property was being rented without being properly licensed and that an additional unit had been installed under the building without city approval or permits as described before in the remarks attributable to Inspector Holmes. Petitioner's Exhibit No. 7 is a composite exhibit and it also contains a complaint by J. Young made on June 29, 1990, concerning a security deposit about which she had requested reimbursement on moving out of the apartment at the subject premises effective May 5, 1990. Within that exhibit is found a copy of a memorandum dated May 2, 1990, from Carol E. Nelson signed as d/b/a Windy Shores Trading Post, Inc. releasing Ms. Young from lease obligations as a tenant. The contents of the Young lease may be found in Petitioner's Exhibit No. 8 admitted into evidence. It includes the agreement under the terms of the lease related to the security deposit. Back in June, Casper was attempting to get Carol Nelson to seek a license from the Petitioner to operate the premises. He made Ms. Nelson aware of the problems that he had identified at the premises to include the lack of a license. If Carol Nelson should arrange for the purchase of a license for the benefit of the corporate operator the obtaining of that license, according to Casper, would take care of the complaint about a lack of license. He reminded Carol Nelson that if the corporation as opposed to Windy Shores Trading Post, Inc. operated the premises, it would need a license and that if during certain relevant times the two corporations operated the premises separately that the proprietors would be paying for licenses twice within a license period. During this conversation Carol Nelson told Casper that when problems were experienced they were responded to by changing to a new corporation. Carol Nelson told Casper that Carol Nelson and Eric Nelson operated the property in question. When Casper made his June inspection he understood the name of the premises to be Layton Apartments. This was based upon the records of the Petitioner associated with the earlier licensed operator Mr. Midkiff. J. M. Young had entered into the lease that has been described through Volusia Realty Associates, Inc. as agent for Midkiff. Four or five months later Windy Shores Trading Post, Inc. bought the property from Midkiff, to Young's understanding. This is confirmed in Petitioner's Exhibit No. 9, correspondence from a representative of Volusia Realty to Petitioner in which Windy Shores Trading Post, Inc. in this May 17, 1990 correspondence is identified as the new owner. Ms. Young had been made aware of that change on January 24, 1990 in correspondence from Volusia Realty to J. Miller setting out that Windy Shores Trading Post, Inc. was now the owner of the property in question. Carol Nelson and her husband are the owners of Windy Shores Trading Post, Inc. Petitioner's Exhibit No. 7, which contains the January 24, 1990 correspondence sets out the fact that Ms. Young's security deposit had been transferred to the new owners, the Nelsons. After the change in ownership from Midkiff to Windy Shores Trading Post, Inc., Young would pay Carol and Eric Nelson her rent and would get a receipt from Windy Shores Trading Post, Inc. Following certain problems, which brought about Young's departure, she got the release from the requirements of her lease from Carol Nelson as has been described. Eric Nelson told Ms. Young that she would get her security deposit back as did Carol Nelson. The security deposit has not been returned. This has not been arranged even though Ms. Young has continued to contact Eric Nelson to get the deposit money. No notice has been given to Ms. Young concerning a claim against the security deposit made by Eric Nelson. Ms. Young was never made aware of a transfer of the ownership of the subject property to the corporation. Dennis Steinke is a Sanitation and Safety Specialist with Petitioner. On December 20, 1990, he performed an inspection at the premises in question. This inspection together with an inspection of January 22, 1991, forms the basis of the charges in the notices to show cause. The findings in the Steinke inspection are part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. A legal notice was given of the findings of that inspection. That led to a notice to show cause dating from January 15, 1991, directed to Eric and Carol Nelson trading as Layton Apartments. This notice to show cause predates the notices to show cause which are under consideration in the present cases. The prior notice to show cause of January 15, 1991 is part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. It carries with it the same nine violations which are spoken to in the subject notices to show cause. Again, the Nelsons do not contest the findings set out in the legal notice which followed the inspection by Steinke and as identified in the present notice to show cause in DOAH Case No. 91-0682 attached as an appendix and as restated from the January 15, 1991 notice to show cause. The January 15, 1991 notice to show cause was served on the Nelsons. No one availed themselves of the opportunity for an informal conference on January 24, 1991 that the January 15, 1991 notice to show cause made available. At the time Steinke made his December 20, 1990 inspection and made the findings reported in Petitioner's Exhibit No. 10 he was unaware that the corporation owned the premises. Steinke's findings of December 20, 1990 were based upon the inspection of three or four units within the licensed premises. Another Inspector with the Petitioner who had a knowledge of the premises is Arthur Begyn. He took certain photographs of the premises on January 25 and 29, 1991, found as Petitioner's Composite Exhibit No. 11 showing the state of disarray at the licensed premises and further confirming observations that had been made by Inspector Steinke in his December 20, 1990 inspection. Begyn had been to the property in mid-November based upon a complaint about operations there. His purpose was to inspect the property but no one was available for such inspection. He tried to find out who the owner of the property was by calling a number that was located on the building. That telephone number is found in one of the photographs in Petitioner's Exhibit No. 11 admitted into evidence. He made contact through that telephone number and presented himself as a possible future tenant. The person who spoke to him on the phone was a lady. She stated that someone would come and make contact with him at the property. As a result of this telephone conversation he met with Carol Nelson who said she was representing Windy Shores Trading Post, Inc. which was the name in a recorded message eminating from the telephone number that had been found on the building. In other words, the telephone answering device said that the caller had made contact with Windy Shores Trading Post, Inc. When the contact was made with Carol Nelson at the property, Begyn made the remark that "you must be the owner of the building", to which Carol Nelson replied "yes, I am". That comported with what certain tenants had told Begyn, that is to say that Carol Nelson and her husband owned the building. Carol Nelson in the course of the conversation with Begyn told him that he should pay her or her husband Eric Nelson the rent money. It was not clear whether the payment would end up with an individual or a corporation. Among the highlights of the photographs of Petitioner's Exhibit No. 11 are those which show that the basement apartment has a door shorter than that of Mr. Begyn how is 6' 1 1/2" tall. There is one photograph that shows a smoke detector ripped from a wall and his inspection of the seven units demonstrated that the individual units did not have smoke detectors. There was a smoke detector in the hall which worked. A rear entrance door on the first level appears to be rotting and in that same area the wood had been disturbed and there were rodent droppings in evidence. There was a leak in an apartment bathroom. There was tile that had been ripped up and not repaired. There was loose electrical wiring hanging down in a certain area. One door which normally has a window was missing a window. A junction box showed where a wire had touched the metal and had a charred appearance with exposed wiring. There was a large hole in the ceiling leading up into an attic. These items were of the nature found by Steinke in his December 20, 1990 inspection. On January 25, 1991, when Begyn was at the property around 6:25 p.m. the Nelsons arrived and removed certain notices that had been placed by the Petitioner in Daytona Beach which prohibited the occupancy of that building. At one point Eric Nelson yelled out to Begyn to, "stay the f off by mf property." Begyn served and read the order and notice related in DOAH Case No. 91-0682 to Carol Nelson on January 25, 1991. This pertains to the emergency order and notice to show cause. These items are seen in Petitioner's Exhibit No. 14 admitted into evidence. Chester Cole who is the District Director for Petitioner in the Orlando, Florida area, in his testimony, identified the fact that the Petitioner became aware that the property in question was operating without the appropriate license contemplated by Chapter 509, Florida Statutes. The records of the Petitioner indicated that Midkiff was the last license holder. Someone contacted the Petitioner and said that he was taking over the property, that person claimed to be Eric Nelson. Eric Nelson indicated that he was the owner of the property and made no mention of a corporation. Nelson was sent an application in which he could point out the change in ownership and get a new license. That application was never returned by Eric Nelson. Mr. Cole was not made aware through any notice from the Nelsons or anyone else who the owner was beyond the Midkiff ownership. As of January 14, 1991, Cole was of the opinion that the Nelsons owned the premises in question. Cole became aware of the tax roll information found in Petitioner's Exhibit No. 3 which showed that the corporation owned the property in question. Cole was also aware through information from the Secretary of State, carried forward on a computer printout of the Petitioner that the corporation had a corporate address of 2036 South Ocean Shore Boulevard, Flagler Beach, Florida, and the registered agent was Winifred Nelson whose address is 2038 South Ocean Shore Boulevard, Flagler Beach, Florida. This is found in Petitioner's Exhibit No. 12 admitted into evidence which carries a date of January 25, 1991 and another date referred to as a "filed date" of May 2, 1990. As alluded to before, Carol Nelson was served with the emergency order and notice to show cause in DOAH Case No. 91-0682. Her husband was also served on January 25, 1991. Both parties were served at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Corroboration of service on the corporation by certified mail in DOAH Case No. 91-0681 was made in remarks from Eric Nelson to Mr. Cole in which Nelson identified that the service was perfected by certified mail and the return receipt dispatched. The corporation's address and that of the Nelsons at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida is the same. Based upon the remarks by Eric Nelson in his testimony, the property in question was never owned in his proper person or by his wife. He did acknowledge that at one time Windy Shores Trading Post, Inc. owned the property in question and that ownership in the Windy Shores Trading Post, Inc. was held with his wife. Nelson points out that he and his wife never did business as Layton Apartments. From Eric Nelson's testimony and other matters presented it appears that Windy Shores Trading Post, Inc. took ownership from Mr. Midkiff. In turn the transaction of May 14, 1990, took place in which Windy Shores Trading Post, Inc. sold out to the Respondent corporation. Eric Nelson in his testimony said that he and Carol Nelson his wife do not work for the corporation or have any "statutory" tie to the corporation. He says in his testimony that he and his wife divested association with the corporation through the change of ownership of May 14, 1991. He describes himself as an independent subcontractor for the corporation as it relates to the building in question. Eric Nelson states that he has not collected rent at the property. He reiterates that his wife is not an employee of the property. He makes the comment that his mother had asked his wife to collect rent for the mother until the mother had returned from her trip to Canada. He indicates that some other "agent" collects rent for the mother on the property in question. He identified the fact that on January 25, 1991, that his mother was in Florida the latter the part of the afternoon and was at 2036 South Ocean Shore Boulevard between 10 a.m. and noon briefly and as he describes it "in and out." Eric Nelson identified that he sleeps at 2036 South Ocean Shore Boulevard at times and that the corporation gets mail there. Contrary to Eric Nelson's protestations, he and his wife during the relevant times associated with the December 20, 1990 and January 22, 1991 inspections referred to in the notice to show cause in DOAH Case No. 91-0682 were serving as managers, and appointed agents of the corporation, as defined at Section 509.013, Florida Statutes (1990 Supp.). Eric Nelson in his behalf and that of his wife conceded to the factual observations of the January 22, 1991 inspection performed by Joseph Pitrowski and found within Petitioner's Exhibit No. 15 admitted into evidence. They coincide with the earlier inspection of December 20, 1990 by Mr. Steinke. Testimony of Mr. Pitrowski was given as it relates to accusations made against the corporation at a time where counsel for Petitioner had announced that the Pitrowski testimony would relate to the corporation and not to the Nelsons. Under the circumstances, Mr. Nelson as representative for himself and his wife departed the hearing room before Pitrowski testified. Therefore, with the exception of the written report rendered by Mr. Pitrowski found within Petitioner's Exhibit No. 15 admitted into evidence and related to an inspection of January 22, 1991, it would be inappropriate to find facts against the Nelsons based upon the Pitrowski testimony. Likewise, that testimony by Mr. Pitrowski related to the corporation has no utility in that the corporation has never requested a formal hearing to contest the accusations placed against it when examining the present record.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is recommended that a Final Order be entered which absolves the Nelsons of the allegations under Item no. 1 in the appendix; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 2; fines the Nelsons in the amount of $250 for the violation established in Item no. 3; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 4; fines the Nelsons in the amount of $250 for the violation established in Item no. 5; absolves the Nelsons of the violation alleged in Item no. 6; fines the Nelsons in the amount of $500 for the violation established in Item no. 7; absolves the Nelsons of the violation Item no. 8 and fines the Nelsons in the amount of $250 for the violation established in Item no. 9. No disposition is suggested concerning the corporation, it having been concluded that the corporation has not requested a formal hearing. In that respect the case is returned to the referring agency for disposition in DOAH Case No. 91-0681 without commenting on the merits of the allegations made against the corporation. RECOMMENDED this 4th day of March, 1991, 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 4th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0681 The following discussion is made of the Petitioner's proposed fact-finding. Paragraphs 1 and 2 with the exception of the last sentence of Paragraph 2 are subordinate to facts found. The last sentence of Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 10 are subordinate to facts found. Paragraph 11 is subordinate to facts found with the exception of the discussion of the violations as they pertain to the corporation which alleged violations have not been challenged by the corporation. Concerning Paragraph 12, remarks attributable to Inspector Pitrowski are rejected because they were made outside of the presence of the Nelsons at a time when counsel for Petitioner had announced that the case related to the Nelsons had been concluded. Paragraph 13 is subordinate to facts found. COPIES FURNISHED: Barbara Palmer, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Emily Moore, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Eric Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2038 South Ocean Shore Boulevard Flagler Beach, FL 32136
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with his law enforcement certificate?
Findings Of Fact The Commission has the power to certify and revoke the certification of law enforcement officers. § 943.12(3), Fla. Stat. (2006). Respondent is a certified law enforcement officer. At times relevant to the inquiry he served in that capacity in New Smyrna Beach, Florida. Based upon the record, it is inferred that his employment was in association with what has been identified as the Volusia County Beach Patrol (Beach Patrol). That organization was constituted of law enforcement officers and other employees, to include an ocean rescue life guard and EMT. The latter employment position was referred to in the organization as a Beach Safety Specialist. The accusations against Respondent in this case involve conduct seen by and directed to two females, Captain Tamara Marris, a law enforcement officer and Beach Patrol Specialist Christine Dobmeier. Both worked for the Beach Patrol at times relevant to the inquiry. The incidents that form the basis for this complaint took place in a building (the station) utilized by the Beach Patrol. The basic design of the building is set out in Petitioner's Exhibit numbered one, admitted. The drawing or diagram is not to scale. It does reflect the location of a locker room, the door to that locker room, a bathroom and an office in the building. It also shows the location of Respondent's locker within the locker room. The door into the locker room is kept shut. It has a combination lock on it that must be unlocked to gain access to the locker room. In the summer 2004, Respondent and Captain Marris finished their duty shift at the beach and returned to the station. They were the only employees in the station at the time. Respondent was in the locker room, which was not intended to be a dressing room. The bathroom is the place where people change their clothes from the duty clothing into other attire. Respondent was facing his locker wearing only a towel when Captain Marris entered the locker room. While in the locker room Respondent's genitals were exposed to her view. On this first occasion Captain Marris thought that the exposure was just an accident. On a second occasion when the two officers, Captain Marris and Respondent were closing the shift, Captain Marris walked into the locker room and Respondent dropped the towel he was wearing exposing himself, that is exposing his genitals. The second incident took place in approximately August 2004. There was a third incident at the station between Respondent and Captain Marris. This time before Captain Marris entered the locker room, she said some words to the effect, "Hey, are you decent," to which Respondent replied, "Yeah, come on in." When she entered the room, Respondent dropped his towel to pull up his shorts and she saw his genitals again. In her mind, with the third incident having transpired, she concluded that Respondent's actions were deliberate. As a consequence beyond that point, when Captain Marris needed to put her work gear away in the locker room, she would wait until Respondent left the station. On the third occasion which occurred sometime around September 2004, Respondent and Captain Marris were alone as they had been on the prior two occasions. When Captain Marris determined in her mind that the Respondent was acting intentionally in exposing his genitals, she considered this to be vulgar or indecent. She did not believe that anything in the conduct was legitimate. Certainly by the third occasion, if not before, Respondent's conduct could be seen as intentional and without legitimate purpose. Christine Dobmeier was subject to Respondent's inappropriate conduct. She was a full-time ocean life guard and EMT in the position Beach Safety Specialist. She had similar experiences with Respondent to those between Respondent and Captain Marris. As Ms. Dobmeier recalls, ordinarily the male personnel would wear "life guard baggies" at work. At times the male employees would wrap a towel around the life guard baggies. This reference is understood to mean some form of pants or shorts worn by the male personnel which they would cover with a towel. In July or August 2004 around closing time, Ms. Dobmeier entered the locker room where Respondent was located. He was wearing a towel when she entered the room. At that moment his towel fell exposing his genitals. She stated, "I am so sorry" and walked out. On that occasion the door to the locker room had been open when she entered. A couple of weeks later Ms. Dobmeier entered the locker room. This time the locker room door had been closed. She did not bother to knock because most people in her experience would change their clothes in the bathroom. She pushed the lock mechanism which made a loud noise. She entered the room and saw Respondent, who was wearing only a T-shirt. Respondent was facing his locker. When Ms. Dobmeier entered the room he turned toward her, exposing his genitals. Ms. Dobmeier apologized for seeing Respondent in his undressed state and immediately left the room. There was a third incident involving Respondent and Ms. Dobmeier, a few weeks after the second incident. This time Ms. Dobmeier knocked on the locker room door and Respondent told her to enter the room. When she did he was standing naked and she walked right back out. Later, Ms. Dobmeier asked Respondent about the third incident and said, "Why did you tell me to come in," and Respondent in reply, as Ms. Dobmeier explains, "Just kind of laughed." After the third incident Ms. Dobmeier felt that the Respondent intended the conduct in exposing himself. There was a fourth incident in the locker room. This time Ms. Dobmeier knocked on the locker room door and did not hear anything in response. She activated the locking mechanism and Respondent was found in the room with his penis erect facing her. He asked Ms. Dobmeier whether he, as Ms. Dobmeier states, indicating Respondent, "Was as large as my boyfriend." This is understood to mean a comparison between Respondent and Ms. Dobmeier's boyfriend as to their genitals. No other persons were in the station when this encounter took place. Ms. Dobmeier considered the Respondent's exposure of his genitals as vulgar. As a result of the last encounter Ms. Dobmeier decided not to enter the locker room while Respondent was at the station. At the beginning of 2005 there was another incident. This time Respondent grabbed Ms. Dobmeier's breast after a swim drill. The incident took place in the locker room with the door open and 10 to 12 lifeguards in the main area outside of the room. Only Respondent and Ms. Dobmeier were in the locker room when he performed this act. His action was not invited or acquiesced to. Ms. Dobmeier responded by telling Respondent, "Don't ever touch me again" and walked away.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of the statutes and rule referred to and revoking Respondent's law enforcement certificate. DONE AND ENTERED this 17th day of October, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 17th day of October, 2006.
The Issue The issues for determination in this proceeding are whether Respondent, KaShamba Miller-Anderson, violated section 112.3145(8)(c), Florida Statutes (2016), by willfully failing to file a 2015 CE Form 1, “Statement of Financial Interests”; and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently a member of the Riviera Beach City Council. As a member of the Riviera Beach City Council, Respondent served as a “local officer” as defined in section 112.3145(1)(a), throughout the year 2015. Respondent was aware that she was required to file a CE Form 1 every year, including for the year 2015. Financial disclosures are filed in order to allow the public to monitor public officials and employees for any conflicts of interest that may arise. The requirement that financial disclosures be filed is intended to deter corruption and increase the public’s confidence in government. In 2016, Respondent received e-mails at the address kmiller@rivierabch.com. She received regular mail at the address 430 West 28th Street, Riviera Beach, Florida 33404. The CE Form 1, “Statement of Financial Interests,” for calendar year 2015 was required to be filed on or before July 1, 2016. There is a grace period for filing the form that expired on September 1, 2016. After the expiration of the grace period, an automatic fine of $25 per day was imposed for each day the form is late, up to a maximum fine of $1,500. The maximum fine accrued on October 31, 2016. The Palm Beach County Supervisor of Elections (Palm Beach SOE) office sent Respondent the original blank 2015 financial disclosure form, along with the requirements for filing the form, before June 1, 2016. She was instructed to file her completed form no later than July 1, 2016. Respondent failed to file her 2015 CE Form 1 by either July 1, 2016, or September 1, 2016. Respondent received notice from the Commission regarding her failure to file her 2015 CE Form 1. On July 31, 2016, the Palm Beach SOE sent a delinquency memorandum to Respondent at 430 West 28th Street, Riviera Beach, Florida 33404 by certified mail. The mail was unclaimed. The July 31, 2016, memorandum included the following statement: Pursuant to State law, please be advised that although you are delinquent in filing Form 1, a grace period is in effect until September 1, 2016. If your form is not received by September 1, 2016, we will be required by law to notify the Commission on Ethics of the delinquency. A fine of $25 for each day late will be imposed, up to the maximum penalty of $1500. In addition, pursuant to enacted legislation, the Commission on Ethics must initiate investigations of delinquent filers in certain circumstances. This can result in you being removed from your public office or employment. Respondent took no action to file her form by September 1, 2016. If she had done so, it would have been considered timely. Commission staff sent Respondent a courtesy letter on September 7, 2016, and advised her that she was accruing a fine of $25 per day for failure to file her 2015 CE Form 1. The Commission also e-mailed Respondent on September 20, 2016, using the e-mail address kmiller@rivierabch.com. Respondent accrued the maximum fine of $1,500 as of October 31, 2016, as authorized by section 112.3145(7)(f), for failing to file her CE Form 1 for the year 2015. On November 4, 2016, the Commission again e-mailed Respondent at the same e-mail address, advising her that the maximum fine had accrued and she still needed to file her 2015 CE Form 1. The November 4, 2016, e-mail attached a blank 2015 CE Form 1 and a form to appeal her fine. Respondent did not avail herself of the opportunity to appeal the fine that had accrued. On February 21, 2017, the Commission sent Respondent a Notice of Assessment of Automatic Fine by certified mail, using the 430 West 28th Street address. Respondent acknowledged receipt of the February 2017 notice. This e-mail also provided the appeal process for contesting the maximum fine. Respondent did not pay the fine at that time because she did not have the funds to do so. She believed, in error, that she now could not file the 2015 CE Form 1 until she paid the fine. Her belief, however misplaced, was sincere. On June 16, 2017, the Commission mailed Respondent a Notification of Issuance of Default Final Order at the 430 West 28th Street address. The Notice was not returned to the Commission as undeliverable. On June 22, 2017, Respondent paid the $1,500 fine. On June 28, 2017, Respondent filed her CE Form 1 for calendar year 2015. Respondent did not have a particularly compelling reason for not timely filing her 2015 CE Form 1. Her position on the city council is a part-time position, for which she is not assigned an assistant. She admitted at hearing that the notice and the form simply got lost on her desk, and she did not make it a priority. However, Respondent claims that while filing her 2015 CE Form 1 was not the priority it should have been, she never intended not to file the form, and she never indicated to anyone that she would not do so. Respondent filed her 2015 CE Form 1 and paid the fine prior to the finding of probable cause in this case. There are some differences between the financial disclosure Respondent filed when she initially ran for office and the one filed for 2015. Those differences however, are not so great as to support an inference or finding that she was attempting to hide something by not filing timely. The term for which Respondent was elected expired on March 21, 2018. She was re-elected for another term which began March 21, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that no violation of section 112.3145(8)(c) has been demonstrated. DONE AND ENTERED this 7th day of June, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 7th day of June, 2018. COPIES FURNISHED: Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
The Issue The issue is whether the alcoholic beverage license #23-03711 SRX, Series #4-COP issued to Respondent should be revoked, suspended, or otherwise disciplined because the licensee permitted patrons to commit criminal offenses on the licensed premises, including possession, delivery and distribution of controlled substances such as cocaine; because a nuisance is maintained on the licensed premises; or because the premises are a notorious gathering place for those predisposed to deal and deliver controlled substances in violation of Florida law.
Findings Of Fact All Purchase Corp. owns the restaurant and bar known as Flame Steak, located at 216 Lincoln Road, Miami Beach, Florida. The establishment holds a Series #4-COP license, #23- 03711 SRX, for the sale of beer, wine and liquor on the premises. The owner of the licensed premises is Mr. Gilberto Rivas. The licensed location consists of a 35 foot glass store front on Lincoln Road. As one enters the restaurant, immediately to the left there are tables, and farther to the left is the kitchen, which contains an open flame grill (hence the name of the establishment). Going deeper into the restaurant, at the end of the kitchen area is a bar with stools. There are more tables in the center of the room, and to the right is a dance floor. At the right rear of the dance floor is a D.J. booth. At the rear left of the establishment is a staircase leading to an upstairs hall, where the men's and women's bathrooms are located. The establishment uses the services of a security guard firm, Columbo Investigations. One guard ordinarily remains at the entrance to check IDs of patrons, and to pat patrons down, to be sure they are not carrying weapons into the establishment. In the year before the emergency suspension, the Miami Beach Police Department responded to 28 calls of incidents at the licensed premises, but none of these calls were for narcotic violations. Another guard is ordinarily stationed in the hall upstairs just in front of the bathrooms. A third guard occasionally roams the establishment. Both the security guards and the bartender are under instructions from Mr. Rivas to immediately remove any patron who breaks the law, especially one who is disorderly, drunken, or otherwise causing a problem. Although the security guard and bartender also testified that Mr. Rivas had instructed them to remove anyone engaging in any illegal activity such as the sale of cocaine, the Hearing Officer is persuaded that the focus of their activities is to remove drunken or disorderly patrons. There is no evidence of any specific program for observing patrons to watch for illegal narcotics transactions. Indeed, the evidence shows a rather casual attitude on the part of security guards to the presence of narcotics, for at one time during the investigation, one of the security guards was smoking marijuana in the men's room. (See, Finding 11, infra.). On another occasion, a DABT officer openly passed a one inch by one inch baggie of cocaine to another officer on the stairs going up to the men's room, which only elicited a wink from the security guard. (See, Finding 16, infra.). Over time, three confidential informants for the City of Miami Beach Police Department told the police that illegal drug transactions were taking place at Flame Steak. Based on these reports, the Department began an undercover investigation, which included agents from the Division of Alcoholic Beverages and Tobacco of the State. The evidence of the reputation of Flame Steak as a location where drugs can be purchased was rather general, but it did serve to explain a legitimate reason for the Police Department and the DABT to have undertaken their investigation. The police did not go to Mr. Rivas with their information before the investigation began. The investigation began on February 18, 1990, and continued through the arrests made at Flame Steak and the suspension of the alcoholic beverage license on Friday, April 6, 1990. Events of February 18, 1990. Miami Beach Police Detective Elicio Zacarias went to Flame Steak with a confidential informant at approximately 12:30 a.m. on February 18, 1990, in an undercover capacity. He spent several hours there, and the confidential informant introduced him to a man, "Eric" and a woman. After meeting Eric, Detective Zacarias asked Eric "how much he could get for $40" as he was standing at the bar. Eric told him to move to a table about 10 feet from the bar. Shortly thereafter Eric returned, and put a one inch by one inch clear plastic baggie of cocaine on the table top next to Detective Zacarias' hand. Detective Zacarias then gave him $40 cash in plain view; Detective Zacarias flicked the baggie to get residue from the top of the baggie down into its bottom in an open manner. Detective Zacarias then made three or four trips to the men's room in order to appear to be snorting the cocaine. He did not pretend to use the drug in the view of anyone in the public areas of the bar; he merely went to the men's room. That same night, Eric introduced Detective Zacarias to the owner of Flame Steak, Mr. Gilberto Rivas. Mr. Rivas is at the location every night. Eric obviously knew Mr. Rivas, and appeared to be familiar with the other people who worked at the bar. Nothing Eric said to Detective Zacarias implied that Mr. Rivas used cocaine, or had ever seen cocaine being passed in the bar, however. Before the bar closed, Detective Zacarias approached Eric for a second time and asked if he could get some more "to go". Eric replied "sure," and went to the front of the establishment to meet with some other person who Detective Zacarias could not see. Eric returned and gave him a similar baggie in a hand- to-hand exchange over the bar during which Detective Zacarias gave Eric $25. Detective Zacarias then left -the bar at about 4:00 a.m. with the two baggies of cocaine. Events of the night of February 24 and 25, 1990. Detective Zacarias returned to the Flame Steak with DABT Investigator Weiner and the confidential informant at approximately 11:00 p.m. on February 24, 1990, in an undercover capacity. The confidential informant introduced Detective Zacarias to a white latin male at the bar, near the staircase to the restrooms. The confidential informant asked that man if he could get something for later, to which the unidentified man replied "I'll take care of you," and told Detective Zacarias and the confidential informant to go up to the men's room. That unidentified man then came to the men's room and in the open part of the men's room sold a similar small baggie of cocaine for $45. Detective Zacarias and the confidential informant then returned to the bar and sat with Agent Weiner. From time to time they would go up to the men's room to appear to be using the cocaine. At about 1:45 a.m. on the morning of February 25, 1990, they made another buy from the same individual. This time the baggie of cocaine was transferred hand-to-hand but below the bar level. Detective Zacarias paid $45 for the cocaine. He left at about 3:00 a.m. Events of March 3, 1990. Detective Zacarias again went to Flame Steak with another undercovered detective, John Quiros on Saturday March 3, 1990. They met the same unidentified white latin male who had sold Detective Zacarias cocaine on two occasions on the night of February 24 and 25, 1990. Detective Zacarias asked him if there was anything available, and was told to go to the men's room. The unidentified latin male removed a baggie from his wallet, which he sold to Detective Zacarias for $30. Detective Zacarias was at the restaurant for approximately 2-3 hours on that occasion. Events of March 16, 1990. Detective Zacarias again went to Flame Steak on Friday, March 16, 1990, at about 10:30 p.m. with Detective Quiros and DABT Investigator Weiner and a female detective for the Miami Beach Police Department, Kelli Reid. The were also in the company of the confidential informant. After they were there almost two hours, Detective Zacarias was introduced to a black female, and he asked her in Spanish if there was "anything available." She replied "for $40 I can get you enough," and Detective Zacarias gave her $40. She went over to a latin male at the bar who took a small baggie, similar to the other baggies in which cocaine had been packaged on prior occasions, from his right rear pocket and gave it to her; she in turn gave it to Detective Zacarias over the table. At about 1:45 a.m. Detective Zacarias asked the same female if she could get more at a lesser price. She then introduced Detective Zacarias to a different white latin male who came to their table from the bar. She told him in Spanish "bring me back for 30" and about 20 minutes later he gave her a baggie which she gave to Detective Zacarias hand- to-hand at waist level containing cocaine. That same morning at about 3:30 a.m. Detective Zacarias asked the black female if he could buy some "to take home." She took Detective Zacarias to the second man again; he took the cocaine from his shirt pocket, and gave it to her for $35. Detective Zacarias held the cocaine in his right hand, examined it, put it in his pocket while he was at a table about five feet from the bar area. That same morning, Detective Zacarias saw a man whom he knew as "Freddie" snorting cocaine in the men's room as Detective Zacarias entered. At about 4:30 a.m. on March 17, 1990, DABT Investigator Weiner was introduced by the confidential informant to a white latin female, "Atricia." Agent Weiner asked Atricia if she could get cocaine, and she left the area where Weiner had been sitting to approach an unidentified latin male. She returned with a message that she could obtain cocaine for $30. Weiner gave her the $30. She left, and when she returned handed Weiner a clear plastic baggie of cocaine. Events of March 24, 1990. Detective Zacarias returned to Flame Steak with Miami Beach Police Detective Reid and DABT Investigator Weiner early in the morning of March 24, 1990, with the confidential informant. After being in the lounge for 45 minutes to an hour, the black female from March 17, 1990, invited Detective Zacarias to sit at her table in the center of the lounge area, near the dance floor. She was with three other women. Detective Zacarias asked her in Spanish if she could find something, she asked "how much?" Detective Zacarias gave her $40. The black female went to a male at the other end of the dance floor and when she returned she gave Detective Zacarias openly in a hand-to-hand fashion a baggie of cocaine over the table. Later they were joined by Eric. Eric had seen the black female purchase the cocaine she recently had given to Detective Zacarias, and asked for a "hit" of the cocaine. Detective Zacarias gave him the baggie and Eric and the black female consumed the cocaine, not openly on the floor of the establishment, but by going to the restrooms. Detective Zacarias had to make the cocaine available to the black female and to Eric in order to maintain his cover. It is common for people who arrange cocaine purchases to be rewarded by being given part of the cocaine they assisted in procuring. On another occasion that night while going to the men's room, Eric asked Detective Zacarias for a hit and Detective Zacarias gave Eric the cocaine in front of the security guard on the second floor landing. Detective Zacarias offered cocaine to the security guard on the second floor landing, who looked directly at it, declined, but did make the comment "it looks good." DABT Investigator Weiner later saw the guard smoking marijuana in the men's room. Later that evening at about 2:00 a.m. Detective Zacarias asked the unidentified black female if she could get more cocaine. She motioned for money and he gave her $40. The black female approached a latin male with a goatee. She gave him the cash and she returned with a clear plastic baggie of cocaine which she delivered to Detective Zacarias hand-to-hand at table level. Thereafter, at about 2:20 a.m., Investigator Weiner met Atricia and negotiated a cocaine purchase for $40. Atricia gave Weiner a baggie of cocaine in an open fashion over the table and he delivered currency to her in the same way. At about 3:45 a.m., after Detective Zacarias had made several trips to the men's room, he asked the black female if he could get some more, and gave her another $40. She then went to a latin female who had been identified as "Isabelle," and while DABT Investigator Weiner saw currency change hands, he did not see Isabelle deliver any cocaine to the black female because of obstruction of his view by people in the bar. The black female returned and delivered cocaine to him in a baggie hand-to- hand, at table level about 10 feet from the bar near the dance floor. Events of March 31, 1990. Detective Zacarias, Detective Reid, and DABT Investigators Weiner and Mesa (a female) went to Flame Steak with a confidential informant at about 12:15 a.m. on March 31, 1990. Investigator Weiner met the white latin male patron, "Frank," who asked Weiner if he "needed anything tonight?" Weiner said "yes," he would start with 1/2 gram. Frank pulled out a clear baggie and sold it to Investigator Weiner for $20. The barmaid then came to the table to take drink orders. Investigator Weiner passed the cocaine over the table to Investigator Mesa as the barmaid was serving the drinks and Mesa returned the cocaine baggie to Weiner. Although this transaction could easily have been seen by the barmaid, the evidence is not persuasive that the barmaid actually saw it. DABT Investigator Weiner negotiated a second cocaine purchase from Frank in the front part of a lounge, paying $20 for the cocaine. It was passed hand-to-hand at waist level. While they were at Flame Steak, Weiner asked Mesa to accompany him upstairs to the restrooms. They passed the security guard at the top of the stairs, where Weiner openly passed the cocaine to Mesa, which elicited the wink from the security guard which has previously been referred to in Finding 2 above. Finally at about 2:30 a.m. on March 31, 1990, Investigator Weiner negotiated his third purchase from Frank. The cocaine was purchased for $20 which was exchanged for cocaine in the same manner as the prior purchases. General Findings Despite the numerous cocaine transactions which the Miami Beach Detectives or the DABT Investigators were able to make with ease from several patrons on the licensed premises, during the entire time of the investigation, no City of Miami Beach Detective or DABT Investigator ever observed any other patrons making drug transactions at any time. Obviously Eric saw the purchase made by Detective Zacarias on March 24, 1990, because he came over and asked for "hits" from the cocaine purchased, see, Finding 11, supra. It is not clear whether the barmaid taking drink orders on March 31, 1990, saw Investigator Weiner pass cocaine to Investigator Mesa. It is clear, however, that on two occasions the security guard at the top of the stairs saw cocaine, once when it was passed from Detective Zacarias to Eric (Finding 11), the second time when it was passed from Investigator Weiner to Investigator Mesa (Finding 16). That security guard also smoked marijuana in the bathroom on the licensed premises (Finding 11). There is no evidence that any drug transactions took place in front of the owner, Mr. Gilberto Rivas. The music played by the D.J. in the bar was so loud that it would be difficult for bartenders or barmaids to overhear conversations among patrons not in close proximity to those employees. No person who sold or procured the sale of cocaine ever made any statement which could be construed as an indication that Mr. Rivas, or any bartender or barmaid knew that illegal drug transactions were taking place on the licensed premises. On the other hand, the security guards, who may nominally be independent contractors, but who are under the direction and control of the owner, Mr. Rivas, saw, knew about, and participated (through smoking marijuana) in the use of controlled substances on the licensed premises. No security guard called the police or asked any persons he saw with cocaine to leave the premises. Mr. Gilberto Rivas did not take any special precautions to prevent or detect drug activity on the premises. He did tell the employees to remove anyone whom they may see involved in drug activities. Mr. Gilberto Rivas had no actual knowledge that drug transactions were taking place on the licensed premises. He opposes drug trafficking, and he has not knowingly permitted the sale of drugs at the restaurant. He has even thrown people out of the establishment if he suspected that they were involved in drug- related activities. The majority of the cocaine sale transactions took place in plain view on the licensed premises. The sales did not take place only in closed toilet stalls in one of the restrooms, but in the open part of the restroom, and more importantly, at the bar or at tables in the restaurant. The number of people at the premises did make watching drug transactions somewhat difficult. For example, on several occasions the detectives or investigators had their views obstructed, so that the could not view both the exchange of currency and the delivery of cocaine to persons who purchased drugs for them. Nonetheless, in view of the number of drug buys that were made over a relatively brief period of time, and the remarkable ease with which apparently innocuous inquiries about whether "something was available" were immediately recognized by bar patrons as request to purchase cocaine, and the very brief periods of time in which sales were consummated, there was a sufficiently persistent pattern of open drug activity that the problem should have been noticed by a reasonably diligent licensee. Mr. Rivas focused his attention on patrons who became rowdy, drunk, or would not pay their bills, and failed to take reasonable efforts to discover or prevent drug transactions on the licensed premises.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that All Purchase Corp. d/b/a Flame Steak be found guilty of violation of the beverage laws by permitting patrons to violate the laws of Florida on the licensed premises through the use of cocaine and marijuana, and by maintaining a nuisance on the licensed premises because cocaine was used and sold and marijuana was used on the premises, in violation of Sections 561.29(1)(a) and (c), 823.10 and 893.13(2)(a)5. Florida Statutes. As a result, the beverage license should not be revoked, but should be suspended for a period of 60 days, and an administrative fine of $2,000 should be imposed. DONE and ENTERED this 20th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 20th day of April, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2189 Rulings on proposals made by the Respondent: 1. Adopted in Finding 1. and 3. Accepted, passim. Adopted in Findings 4-6, except that the amount of cocaine sold in each instance was not proven to be 1/2 gram, but from viewing it, it appear to have been approximately 1/2 gram. Adopted in Finding 7. Adopted in Finding 8. Adopted in Findings 9 and 10, except that the packets were approximately 1 to 1 1/2 inches square, not 1/2 inches square. Adopted in Finding 11, except that the transfer of the cocaine was not done in a concealed manner, because Eric saw it. In addition, the evidence supports the inference that the security guard was either employed by the restaurant, or was under the direct supervision and control of Mr. Rivas. Covered in Findings 14-17. Adopted in Finding 18. Accepted as to Mr. Rivas, the bartender, and the barmaids, but rejected with respect to the security guard. Accepted, see, Finding 2. Rejected because there had been 28 calls, not 4 or 5 calls to the Miami Beach Police Department. Discussed in Findings 19-22. Rulings on proposals made by the Department: Covered in Finding 1. Covered in Finding 3, in a general manner as to the impetus for the investigation. The events of each of the nights is separately explained in the Recommended Order. and 4. Rejected as unnecessary; the material purchased was cocaine. To the extent appropriate, covered in Finding 3. While the printout Sergeant Hunker offered was not admitted, his testimony established the number of police calls to the bar. Separately covered in the Findings relating to the nights of March 16 and 31, 1990. Rejected as unnecessary. Gilberto Rivas had very little useful information in his testimony, due to his limited work at the bar. Adopted in Findings 19 and 22. Generally accepted as it relates to the duties of the security guards at the premises and the instructions from Mr. Rivas. The Notice to Show Cause raises no issue with respect to sales to underaged drinkers, so no findings on that subject have been made. Generally rejected because the testimony of Mr. Rivas was rather confusing, no doubt in great part because of the difficulty in translation. Findings with respect to the time Mr. Rivas spends at the location and what he told his employees are made in Findings 5 and 19-22. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Yale L. Galanter, Esquire Beverly Myrberg, Esquire 2800 Biscayne Boulevard 9th Floor Miami, Florida 33137 Leonard Ivey, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Raymond C. Riddles has been certified as a law enforcement officer since September 1, 1971. He holds certificate number 090171. November 3, 1976 On November 3, 1976, Joseph A. Vi11ar, at the time a policeman with the Pensacola Police Department, arrested respondent Riddles at the wayside park off Gregory Street, near the northern end of Pensacola Bay bridge. In November of 1976, travelers, fishermen and other members of the public regularly made use of the park and the public bathrooms there. The park featured a double picnic table and ten or twelve other picnic tables. The old bridge across Pensacola Bay had been halved, and the park was near the end of one of the halves used as a fishing pier. The park had also gained notoriety as a meeting place of homosexuals: on two nights in 1974 police arrested 18 persons on various charges. On the night of November 3, 1976, Mr. Villar, wearing blue jeans and a pullover to disguise the fact that he was a policeman, entered the men's room in the park, after respondent Riddles called him into the bathroom. In the bathroom, Mr. Riddles beckoned Mr. Villar to a stall and, from the adjoining stall, asked if he wanted to "fool around." The partition between the toilet stalls had been to some extent removed; Villar's view of Riddles was unimpeded. Riddles first addressed Villar with his back to him, then turned around, penis in hand, continuing to masturbate. At this point, Mr. Villar placed him under arrest. Eventually Mr. Riddles stood trial on charges arising out of the incident, and was found guilty of lewd and lascivious behavior in a public place. September 12, 1984 In September of 1964, complaints that men were romping through the woods in various states of undress at a place called the Old Chimney, an abandoned steam plant site near the Scenic Highway, reached the Pensacola Police Department. As a result, on September 12, 1984, Jim Leath, a supervisor with the Pensacola Police Department, in charge of the vice unit, visited the site. Numerous persons of various sexual persuasions had come to use the area as a park. Vehicles were parked along the road, including one in which Mr. Leath spotted a Florida Highway Patrolman Auxiliary cap. Walking down a footpath, Mr. Leath came to respondent Riddles at about one o'clock in the afternoon. He recognized Mr. Riddles as someone he had seen before and remembered the cap he had noticed through the window behind the back seat in a vehicle parked in the area in which he himself had parked. Mr. Riddles stood next to a tree. A conversation arose between the two men, during which Mr. Riddles rubbed his crotch. Mr. Riddles said that he came to the Old Chimney on a regular basis to meet people, then turned away, withdrew his penis from his trousers and turned back, displaying his semi-erect penis. Only seconds had elapsed when Mr. Riddles heard someone else approach, left off stroking his penis, tucked himself in, and zipped his trousers up. Mr. Leath returned to the parking lot and made a note of the license tag number of the vehicle with the cap. He later determined that the vehicle was registered to Mr. Riddles, and located a photograph of Mr. Riddles. Eventually he obtained a warrant and arrested Mr. Riddles. In due course, Riddles pleaded nolo contendere to lewd and lascivious behavior, and to exposure of sexual organs. He was adjudicated guilty of these offenses and placed on six months' probation, on conditions including that he pay $20 a month and stay out of the area of the Old Chimney.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that he used his law enforcement badge and credentials to misrepresent himself as acting in a formal law enforcement investigative capacity, when he was actually engaged in a private matter. The Respondent denies any misconduct.
Findings Of Fact Facts stipulated to by the parties Respondent David A. Thomasun (hereafter "Thomasun") holds auxiliary law enforcement certificate number 01-6739, issued by the Criminal Justice Standards and Training Commission on October 16, 1979, and holds law enforcement certificate number 03-84-002-03, issued by said Commission on November 5, 1984. On June 27, 1988, at approximately 6:30 p.m., Thomasun entered the Broward General Medical Center for the purpose of photographing an individual named Phillip Ambrose, who, unknown to Thomasun at the time, had shortly before been arrested by the Pompano Beach Police Department, and subsequently had been taken to the Medical Center by the Pompano Beach Police for further examination. Thomasun was then an auxiliary special agent with the Florida Department of Law Enforcement, but was not on duty at the time he entered the Medical Center. He had not been authorized or requested by the Florida Department of Law Enforcement (FDLE), the Pompano Beach Police Department, or any law enforcement agency to photograph Ambrose for any purpose. Thomasun had been hired by a personal injury attorney to take photographs of Ambrose, who was the attorney's client, at the Medical Center. Thomasun had no reason for being in the Medical Center other than to take said photographs for said attorney. Thomasun approached Pompano Beach Police Officer Scott Winters, who was guarding Ambrose, and after Officer Winters searched his camera bag and his pockets, and viewed other personal identification such as his driver's license, Thomasun displayed to Officer Winters his FDLE auxiliary special agent credentials, consisting of a black leather case containing two identification cards, one with a photograph, and a badge attached and visible on the exterior of the case. Said credentials identified Thomasun as an auxiliary special agent with FDLE. Shortly afterward, Officer Winters left the immediate area to make some telephone calls, without permitting Thomasun to take any photographs of Ambrose. Thomasun then departed without taking any photographs. On the following day, June 28, 1988, Thomasun related his account of the incident of the preceding day to his immediate supervisor, Special Agent Joyce Dawley, and to Assistant Chief of Regional Operations Harry Solowsky and Special Agent Supervisor George Vilardi. Thomasun was terminated from his position as auxiliary special agent with FDLE on June 28, 1988. Facts established by evidence at hearing Thomasun's termination from his position as an auxiliary special agent with FDLE was based on the information gathered by FDLE du ring the course of its investigation of the incident on June 27, 1988, at Broward General Medical Center. 2/ Thomasun's stated purpose for going to the hospital room on June 27, 1988, constituted, by his own admission, a direct conflict of interest with his duties as an auxiliary law enforcement officer. Shortly after realizing that the situation in the hospital room represented a conflict of interest, Thomasun left the hospital room. At all times material to this proceeding, auxiliary special agents of the FDLE were subject to the provisions of Procedural Order 87-2. Section I.C. of that procedural order read as follows: FDLE auxiliary special agents are authorized to function as regular law enforcement officers only during specific tours of duty and investigative situations. When off duty, the auxiliary special agent may only act in the capacity of a private citizen. Auxiliary special agents can only function as regular law enforcement officers when under the direct control and supervision of a full-time special agent of the Florida Department of Law Enforcement. Section VI.A.3. of Procedural Order 87-2 read as follows: Although the display of credentials will only be permitted while in an on-duty status in the company of a full-time sworn agent, the auxiliary special agent will be permitted to keep his/her credentials while in off-duty status provided they do not display or attempt to exercise official powers unless in an on-duty status. Thomasun was thoroughly familiar with the above-quoted provisions of Procedural Order 87-2.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Administrative Complaint. DONE and ENTERED this 2nd day of March 1992, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1992.
