The Issue Whether the Department of Corrections' alleged policy of forbidding phone calls between incarcerated husbands and wives, when the wives are incarcerated at Broward Women's Correctional Institution ("BWCI"), is an unpromulgated rule and therefore invalid.
Findings Of Fact Based on the evidence presented, the following facts are determined: The parties stipulate that petitioner has standing to maintain this proceeding i.e. that he is substantially affected by the challenged agency policy. Petitioner is currently incarcerated at Union Correctional Institution; his wife is incarcerated at Broward Women's Correctional Institution (BWCI). Both institutions are part of the state prison system operated by the Department. In August 1983, petitioner asked for permission to telephone his wife at BWCI, but his request was denied by Department officials. Under a BWCI policy, as well as a Department policy, inmates at other institutions are not normally allowed to place telephone calls to inmates at BWCI. The departmental policy is embraced by Rule 33-3.125(1)(e) , which provides: (e) Inmates may not receive incoming telephone calls because it is disruptive to normal operating and program functions of an institution. This rule effectively prohibits inmates from placing calls to inmates at other correctional institutions. Petitioner has not shown that the Department's denial of permission was dictated by any written statement or policy other than that contained in this Department rule.
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times material hereto, Respondent, Brenda Barnett, was employed as a detention deputy by the Pinellas County Sheriff's Office, and deemed to be a classified employee. Respondent was initially hired in 1991, and worked as a steward in the jail kitchen facilities before becoming a detention deputy. Respondent is a state-certified sworn correctional officer and, in her capacity as a deputy detention officer, is charged with exercising direction, dominion, and control over incarcerated inmates. Prior to her employment as a detention deputy and as a condition thereto, Respondent received extensive training. Such training includes nearly 500 hours of academy training sanctioned by the Criminal Justice Standards and Training Commission. Also, once employed, the Pinellas County Sheriff's Office provides detention deputies with in-service training and forty hours of formal training annually. Respondent received such additional training through in- service while employed as a detention deputy. In March 1995, Respondent Barnett began a casual relationship with an inmate, Nelson Alas. Inmate Alas was incarcerated at the same facility where Respondent Barnett worked. At first, Respondent exchanged pleasantries such as "hello" or "good bye" with Inmate Alas. Inmate Alas would compliment Respondent. Within days, Inmate Alas attempted to pass a note to Respondent Barnett. Initially, Respondent refused to accept the notes. However, within ten days, Respondent accepted a note from Inmate Alas and soon began writing letters to Inmate Alas. Between the period, March 1995 and April 1995, Respondent wrote at least twenty-one letters to Inmate Alas. During this time Inmate Alas also wrote letters to Respondent. At one point Inmate Alas gave Respondent a photograph of himself. The letters written by Respondent to Inmate Alas were romantic in nature, and many of them spoke of her feelings for and attraction to Inmate Alas. Respondent has never denied and has, in fact, admitted writing these letters to Inmate Alas. Respondent further admitted that on one occasion during her involvement with Inmate Alas, she kissed him. Respondent's actions came to the attention of Detention Deputy David Howsare when an inmate told him that there was communication between Respondent and Inmate Alas, including the exchange of notes and allegations of physical contact. Detention Deputy Howsare reported this through his chain of command, and a search of Inmate Alas' cell was conducted. The search uncovered letters that had been written to Inmate Alas. At about the same time the complaint was made to Detention Deputy Howsare, a complaint regarding Respondent was called in to the PCSO Inspection Bureau. The complaint was made by Cynthia Hadley, who identified herself as the girlfriend of Inmate Alas. Ms. Hadley indicated that her boyfriend, Inmate Alas, was having an affair with a detention deputy and had written several letters to the detention deputy. The matter was referred to the Administrative Investigation Unit and Sgt. Daniel Buckingham and Sgt. Robert Kidd were assigned to investigate the complaint. During the investigation, Sgt. Buckingham sought to ascertain the identity of the person who wrote the letters that were found in Inmate Alas' cell. In this regard, Sgt. Buckingham had the letters sent out for processing for latent fingerprints. After this analysis revealed only the fingerprints of Inmate Alas, Respondent was required to provide a handwriting exemplar. The handwriting exemplar was sent to the Florida Department of Law Enforcement for analysis. The result confirmed that Respondent was the author of at least fifteen of the letters. Also, as part of the investigation, interviews were conducted with Inmate Alas, Ms. Hadley, and Respondent. The interview with Inmate Alas' was unsuccessful in that he was evasive, refused to answer many questions, and was generally uncooperative. During her interview with Sgt. Kidd and Sgt. Buckingham, Respondent admitted improper contact with Inmate Alas, including writing letters to him and receiving a photograph of him. Upon completion of the investigation, the investigatory file was given to Respondent's Chain-of-Command Board for review. Based on its review, the Chain-of-Command Board unanimously found that Respondent had violated rules and regulations of the PCSO relating to loyalty, association with prisoners, and knowledge of and obedience to rules and regulations. As a detention deputy, Respondent's actions of fraternizing with an inmate compromised her position and may have lead to the erosion of security. Also, such undue familiarity has the potential for jeopardizing the security of the institution and the safety of the public as well as that of Respondent's own family. Under the PCSO General Orders B-15 and C-1, as amended in February 1994, the disciplinary point calculation for Respondent Barnett was seventy-five points. The range of discipline for seventy-five (75) points is from a 10- day suspension to termination. The Chain-of-Command voted unanimously to recommend termination. Sheriff Rice concurred with the recommendation and terminated Respondent on June 20, 1995. Throughout the investigation and hearing, Respondent has admitted that she engaged in the conduct which is the subject of the termination notice. Respondent explained that her involvement with Inmate Alas occurred during a time that she was experiencing marital problems. In Respondent's opinion, these problems were exacerbated when she found a diary belonging to her husband in which he stated that he no longer loved her. According to Respondent, due to these problems, she was extremely vulnerable at that time. However, Respondent indicated that after the incidents which are the subject of this proceeding, she and her husband went to counseling and, presently, their marriage is strong. Prior to this case, Respondent has not been investigated or disciplined by the PCSO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Sheriff's Civil Service Board enter a Final Order finding Respondent, Brenda Barnett, guilty of conduct unbecoming a public servant; violating PCSO Rules C-1, V, A, (002) and (011) and Rule C-1, V, C, (063); and upholding Respondent's termination from employment as a deputy detention officer with the Pinellas County Sheriff's Office. DONE and ENTERED this 31st day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0019 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1-4. Accepted. 5-22. Accepted and incorporated to the extent not subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1-2. Accepted. 3-6. Accepted and incorporated. 7-8. Accepted but subordinate to result reached. 9-11. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate to result reached. 14-20. Rejected as conclusions of law and/or legal arguments. COPIES FURNISHED: Lawrence A. Jacobs, Esquire Feathersound Place 2727 Ulmerton Road, Suite 2 Clearwater, Florida 34622 James M. Craig, Esquire ALLEY AND ALLEY/FORD AND HARRISON 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Copies furnished continued: Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 34649-2500 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617
The Issue Whether the Pinellas County Sheriff's Office (PCSO or Petitioner) properly terminated Respondent, Richard Stotts, from his employment as a deputy sheriff for engaging in conduct that violated Petitioner's General Order 3-1.1, Rule and Regulation 5.15, regarding the Custody of Arrestees/Prisoners.
Findings Of Fact Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of PCSO. Sheriff Gualtieri's responsibilities include providing law enforcement services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline, in accordance with the Civil Service Act, on PCSO members and employees who are found to have violated PCSO rules or regulations. At all times pertinent to this case, Respondent was employed by PCSO as a deputy sheriff. At the time of his termination, Respondent had been employed by PCSO for approximately 12 years. As a deputy sheriff, Respondent was charged with the responsibility of complying with all PCSO rules, regulations, general orders, and standard operating procedures. PCSO General Order 13-3 requires that PCSO members shall use only that degree of force necessary to perform official duties. The member shall not strike or use physical force against a person except when necessary in self-defense, in defense of another, to overcome physical resistance to arrest, to take an individual into protective custody, or to prevent escape of an arrested person. At the time of the events in issue in this case, Captain David Danzig (then a Lieutenant) was assigned to the PCSO Administrative Investigations Division. Sergeant Deanna Carey is assigned to the PCSO Administrative Investigations Division. Sergeant Christina Cuttitta is assigned to the PCSO Administrative Investigations Division. Sergeants Carey and Cuttitta investigated the complaint of misconduct that was filed against Respondent on or about June 11, 2013. The complaint of misconduct alleged that on May 8, 2013, Respondent violated General Order 3-1.1, Rule and Regulation 5.15, pertaining to the custody of arrestees/prisoners. At the Administrative Review Board (ARB) hearing, Respondent admitted that his use of force on the inmate was not justified because it did not meet the criteria for use of force. PCSO General Order 10-2 covers discipline and ranks certain offenses. This General Order ranks offenses from Level 1 to Level 5. A Level 5 offense is the most severe. A Level 1 offense is the least severe. Further, this General Order sets forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The point total for the violation admitted before the ARB in Respondent's case was 50. Respondent had five carryover points from prior discipline. Under PCSO General Order 10-2, 55 points reverts to 50 points. Under PCSO General Order 10-2, the range of discipline for a 50-point violation is a minimum five-day suspension to termination. Sheriff Gualtieri terminated Respondent from his employment with PCSO effective 1200 hours on July 29, 2013. Exhibit 13 is a series of six video clips taken from various angles in the intake and booking section of the Pinellas County Jail. The six video clips document Respondent's actions. Respondent was not involved in bringing the inmate into the intake/booking area. The inmate, who was yelling obscenities and racial slurs, was standing on the mat to have his picture taken when Respondent left his station, approached the inmate, and proceeded to strike the inmate and take him to the floor. Respondent admitted that he used force on the inmate. Respondent admitted that the use of force on this inmate was not justified. In the past three years, two (former) deputy sheriff were terminated for Level 5 offenses. While the exact offenses involved other Level 5 offenses, the consistency in discipline is constant: termination. There was no justification for Respondent's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Pinellas County Sheriff's Office, enter a final order finding that Respondent, Richard Stotts, violated General Order 3-1.1, Rules and Regulations 5.15, and terminating his employment. DONE AND ENTERED this 12th day of November, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 12th day of November, 2013.
The Issue Whether Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against female employees of the Wakulla County Sheriff’s Office so as to create an intimidating, hostile, or offensive work environment, and whether Respondent committed battery on female employees of the Wakulla County Sheriff’s Office, on the dates alleged in the Administrative Complaint and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement and correctional officers in Florida. § 943.12, Fla. Stat. (2013). Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, including those requiring that a certified officer maintain good moral character, and to take disciplinary action against officers found to have failed to maintain those qualifications. On September 9, 2005, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 251492. On November 16, 2010, Respondent was certified as a law enforcement officer, and holds Law Enforcement Certificate Number 294018. Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. Respondent was credibly described as a stickler for rules. He was a strict supervisor and harsh with subordinates, but was recognized as knowing policy and getting things done. By all credible accounts, the Wakulla County jail was, during the period in question, a place at which flirtation, cutting up, joking around, playing pranks, and horseplay between employees of the WCSO was routine. Deputy Metcalf testified that the flirtatious behavior included male and female officers hugging and rubbing one another’s shoulders. The rough and crude humor, language, and practical jokes were a means by which the employees in a stressful occupation could burn off steam. The evidence suggests that Respondent was an active participant in the horseplay and, though his workplace behavior was not entirely out of place in the social context of the Wakulla County jail, he would occasionally take it to extremes, particularly in his interactions with female subordinates. He was known to place female officers in an “arm-bar” (also called an “arm-lock”), an incapacitating maneuver by which the person’s arm is twisted and brought behind their body. He would also poke the female officers in the ribs with a force that could cause a bruise, or pull their hair.3/ All in all, the evidence suggests that Respondent occasionally acted without the degree of restraint and decorum that one would expect of a supervisory officer of the WCSO. However, except as otherwise specified herein, there is little to suggest that the acts were sexually motivated. The Jail Security System Prior to 2011, the system of security cameras at the Wakulla County jail was inadequate and in disrepair. There were numerous locations in the jail facility that were out of camera range, and some of the cameras that were in place were inoperable. The old system did not record audio. In 2011, the security system was substantially upgraded. The new system covers most of the “holes” left by the old system, and records audio. The system is motion-activated, so that anytime motion is detected in a coverage area, the cameras and audio activate and record any activity. All activity recorded by the security system is stored on a hard-drive, and can be reviewed by authorized officials of the WCSO. As the hard-drive is filled, it records over the oldest data on a continuous loop. Once data is recorded over, it cannot be recovered. The evidence was vague as to the length of time that data can be recovered from a particular camera, and the length varies depending on the rate of activity in an area covered by a particular camera. The most persuasive evidence indicated that recorded activities can be reviewed for a period of at least 30 days in an area of heavy activity. Since the control room is manned at all times, and is generally a hub of activity with officers coming and going at all times, the video and audio recordings for that area are generally continuous. Thus, activities occurring in the control room are recorded and available for review for at least 30 days. Although there are a few nooks and corners in which one may be out-of-sight of the cameras, they are few in number. In addition, several areas are not under video monitoring, including the quartermaster’s office. The control room contains monitors that display the video feeds from each of the security cameras at the jail. Live video is continuous, although it is recorded only when movement was detected. Although audio operates under the same parameters as video, it can be turned on or off in the control room live feed. In addition to the monitors in the control room, the offices of higher-ranking officers, including those of Captain Taylor and Major Miller, have monitors on which the security camera feeds may be viewed at the officer’s discretion. The officers occasionally use the security cameras to monitor the jail staff to ensure they are not loafing. The WCSO officers and employees are well aware that actions taking place in the jail are under surveillance. They know where the cameras are located, and understand the capability of the system to observe and record their actions. The evidence was persuasive that the general time limit on the availability of recordings was also known by jail personnel, particularly those in supervisory positions. The security camera system is frequently used to resolve complaints regarding prisoners and staff. If a prisoner has made a complaint against a WCSO staff person, it is a simple matter to go to the date and time of the incident, and review the tape. If an incident is detected, a permanent DVD copy can be made to preserve the evidence. The system is also used if cell inspections reveal unauthorized materials in the possession of the prisoners. The security camera recordings have been used to detect who on the WCSO staff were providing “contraband,” including extra food and blankets, to the prisoners. The ability to use the security camera system for one of its primary purposes is dependent upon complaints being made within a reasonable time from the occurrence of the event, so as to allow for the security camera recordings to be accessed before being recorded over. In the event of any sort of complaint, the first responsibility of a supervisor is to “lock in” the date and time of the incident and review the security camera recordings. Training at the Academy From February 2010 through November 2010, Respondent attended the Field Training Officer’s Program at the Pat Thomas Law Enforcement Academy (Academy). Other attendees included then-Sgt. Lindsay Maxwell, then-Sgt. Julie Martin, Ashley Alexander, Lisa Hummell, Gibby Gibson, Michael Zimba, Jason Barksdale, and John David Metcalf. Transportation to and from the Academy was provided by the WCSO using one of two vans. Deputy Gibson was the normal driver for the trips between the Wakulla County jail and the Academy. He was generally regarded as a fast driver, being heavy on the gas and the brakes, and known for cornering at high speed. As a result, it was easy to get thrown around if not seated and buckled in. Attendance at the Academy was generally necessary for accreditation and career advancement as a law-enforcement officer. However, several of the officers selected to attend the Academy believed attendance to be mandatory, and were dissatisfied with the fact that they were not being paid for the hours spent in travel and attendance. They were vocal in their dissatisfaction. Several of the attendees believed Respondent to be a “snitch” or a “tattletale,” relating their conversations in the van to higher-ranking officers. Deputy Hummell blamed Respondent for word of their dissatisfaction with not being paid for attendance, among other conversations, making its way to Captain Taylor. As a result of the general air of dissatisfaction expressed by attendees, Captain Taylor gave them the option to quit the training. None did so. In order to confirm the nature of the training, each of the participants was thereafter required to sign a statement agreeing that their attendance was voluntary. Over time, some of the attendees opted to ride in personally-owned vehicles rather than the WCSO van. After the completion of training, then-Sgt. Martin was promoted to the rank of lieutenant, and was thereupon assigned to supervise one of the jail shifts. Overlapping Shifts The Wakulla County jail, being a facility that is in use 24 hours per day, is manned in shifts. Officers are assigned to a shift, and get to know those persons sharing that shift. Starting in early 2011, and continuing until March 2012, Lieutenant Martin and Respondent supervised separate shifts. Lieutenant Martin generally assigned deputies to a duty station and allowed them to routinely work that station. There was no evidence that deputies in Lieutenant Martin’s shift were moved around to other stations. Deputy Jacques was in Lieutenant Martin’s shift, as were Deputy Hummell and Deputy Metcalf, among others. Respondent had a practice of assigning deputies in his shift to different duty stations for the purpose of making sure that each deputy was familiar with each duty station. The deputies in Respondent’s shift were used to the protocol. In March, 2012, Respondent suggested that he and Lieutenant Martin overlap their shifts, so that each of the command officers could get to know the deputies on the other’s shift. Lieutenant Martin agreed that was a good idea and the shift overlap was implemented. When the shift overlap was implemented, Respondent began to assign deputies in Lieutenant Martin’s shift to different duty stations when they were under his supervision. Respondent would ask deputies to identify which area they believed to be the worst to work, and would then assign them to that area. The reassignments, though logical, were unpopular with the officers in Lieutenant Martin’s shift, who were not used to Respondent’s style of supervision. After the overlapping shifts were implemented, Deputy Jacques was occasionally assigned to the Station 1 control room, away from her normal duty station in the control room for the “B side” of the jail, which housed female inmates and local inmates. Respondent’s reassignment of Deputy Jacques was consistent with his practice of rotating shifts to familiarize deputies with all duty stations. The Precipitating Incident and Report On April 6, 2012, Deputy Middlebrooks, an acting shift supervisor, had called in sick. Respondent was called in to supervise the 5:00 a.m. shift. He assigned Deputy Jacques to Station 1. Deputy Metcalf, who was normally assigned to Station 1, was assigned to visitation. During the course of the morning, Respondent moved from his seat at the “lieutenant’s desk” in the control room to sit next to Deputy Jacques at the control panel. While there, Respondent was seated close to Deputy Jacques, and was observed by Deputy Metcalf to be touching her shoulders and hair. Deputy Jacques testified that Respondent was seated too close to her for comfort, and would touch her leg, pull on her hair, and poke her in the side. Deputy Jacques asked him to stop without success. Later in the day on April 6, 2012, Deputy Metcalf was told by Deputy Jacques that Respondent’s sitting so close made her feel uncomfortable. Deputy Metcalf related that conversation to Lieutenant Martin. Lieutenant Martin approached Deputy Jacques on April 7, 2012 and asked her about the incident. Deputy Jacques denied that Respondent had acted inappropriately towards her, stating that “we’re fine, we’re good,” and that if Lieutenant Martin had any questions she “could go review the cameras.” Lieutenant Martin reported the allegation to Captain Taylor. Lieutenant Martin testified that she merely related the incidents as reported to her, and that she never said “sexual harassment.” Lieutenant Martin further testified that Captain Taylor advised that “it's not considered sexual harassment until she tells him to stop several times.” Captain Taylor testified that Lieutenant Martin came to his office and advised him that Deputy Metcalf saw Respondent sitting very close to Deputy Jacques in the control room, and that Deputy Jacques subsequently advised Deputy Metcalf that it made her feel uncomfortable. Lieutenant Martin further advised Captain Taylor that Deputy Jacques did not want to file a complaint. Captain Taylor denied Lieutenant Martin’s assertion that he dismissed her report because sexual advances must be rebuffed several times before it becomes sexual harassment. His testimony is credited. There being no complaint, and nothing related by Lieutenant Martin that would necessitate a review of the security cameras, a review was not made. At some point, though the date was not specified, Deputy Johnson advised Lieutenant Martin that Respondent had fondled Deputy Jacques in the jail’s medical unit. There is not a shred of evidence, from Deputy Jacques or otherwise, to support that allegation. Deputy Johnson also told Lieutenant Martin that Respondent offered to drop an incident involving the provision of extra bed linens to inmates in exchange for a kiss. Despite the seriousness of the unsubstantiated account of fondling, Lieutenant Martin did not approach Deputy Jacques to ascertain its validity, nor did she attempt to review any tapes to substantiate the allegation.4/ Lieutenant Martin did not report the new information of either incident to any higher authority. “A while later,” Lieutenant Martin spoke with Karen Ward, who indicated that Deputy Jacques was considering leaving the WCSO due to Respondent’s behavior. As a result of that conversation, Lieutenant Martin again spoke with Deputy Jacques. During that conversation, Deputy Jacques was told by Lieutenant Martin “that I was not alone, that it happened to her, too, and there's others . . . . I felt like if she's going to say something, I'm going to say something, too.”5/ Deputy Jacques thereafter advised Lieutenant Martin of the incidents that appear in the written complaint in this case, including the allegation that on April 6, 2012, Respondent placed Deputy Jacques in a headlock and attempted to drag her into the control room bathroom. Despite her professed concern for Deputy Jacques, and despite her knowledge that “you can't go back more than a month or month-and-a-half” to review security camera recordings, Lieutenant Martin still did not file a complaint, and made no effort to review the security system recordings of the alleged incident. Rather, Lieutenant Martin went on a two-week vacation commencing on or about May 1, 2012. Lieutenant Martin returned from her two-week vacation on May 18, 2012, and returned to work on May 19, 2012. She then went to Major Miller regarding Deputy Jacques’ allegations. Major Miller advised her to file a complaint, which Lieutenant Martin finally did on May 23, 2012. The Investigation After Lieutenant Martin filed her complaint with Major Miller, it was assigned to then-Captain Carroll to initiate a supervisor’s inquiry. The evidence establishes that Captain Carroll coordinated the early stages of the investigation with Lieutenant Martin. Lieutenant Martin approached witnesses to instruct them that they were wanted in Captain Carroll’s office. On more than one occasion, the nature of the inquiry was divulged by Lieutenant Martin, though there is no evidence of any lengthy conversation. During Captain Carroll’s interview of Deputy Jacques, she related the March 14, 2012, offer to drop the contraband blanket issue in exchange for a kiss, and the April 6, 2012, incident in the control room. At the conclusion of her interview, Captain Carroll advised Deputy Jacques that “probably when you get your notes, there's going to be a lot more that you remember.” Deputy Jacques’ notes reflect no other incidents. There is no evidence to suggest that Deputy Jacques discussed or disclosed the incidents of touching, poking, and grabbing that formed the basis for much of her testimony in this case. At the conclusion of the supervisor’s inquiry, the matter was reviewed by Major Miller and the undersheriff. They authorized a further investigation of the complaint. On June 11, 2012, the investigation was assigned to Lieutenant Deal, a WCSO Internal Affairs investigator. At the time, the allegations involving Deputy Jacques consisted only of the two incidents as related to Captain Carroll. During the course of the investigation, Lieutenant Deal was provided with a series of text messages exchanged between Deputy Jacques and Karen Ward. Although the text messages, which were sent within days of the alleged incident, contained statements that could be construed as exculpatory, there was no effort made to inquire of Deputy Jacques as to the context or circumstances of the text messages. Lieutenant Deal questioned the witnesses who appeared at the supervisor’s inquiry, two additional witnesses, Respondent, and three witnesses identified by Respondent pertaining to an allegation as to the motive of Major Miller in encouraging the complaint. As a result of his interviews, Lieutenant Deal ultimately expanded the investigation to include allegations of improper conduct made by Lieutenant Martin, Deputy Hummell, Deputy Hughes, and Ms. Boyatt. As a result of his investigation, Lieutenant Deal concluded that there were “sustained charges.” However, in keeping with the absolute lack of specificity of the facts upon which the allegations in this case were based, Lieutenant Deal was unable to identify what the “sustained charges” may have been, other than they were “[c]onduct, policy charges. I don't have the file exactly before me right now to tell you what they were, but they were conduct charges, harassment, and I think threatening and bullying others were the two charges.” Surprisingly, Lieutenant Deal’s investigative report was not made a part of the record.6/ The Effect of Delay on the Availability of Evidence Security camera recordings are routinely made part of investigations of activities occurring at the jail. Lieutenant Deal testified that, except for the instant case, he has “always been able to get video if I initiated the cases or they were in my hands within a couple of days.” In this case, by the time the complaint was assigned to Captain Carroll, the tapes of the incident had been recorded over. When Lieutenant Martin approached Deputy Jacques on April 7, 2012 to inquire about the incident, Deputy Jacques rightly suggested to Lieutenant Martin that “[i]f you really want to see what happened to me, review the cameras.” The video and audio recording would have been easily and readily available, and would have constituted the best and most accurate account of the incident. Despite Deputy Jacques’ suggestion that she look at the cameras, Lieutenant Martin declined to “lock in” the date and time of the incident and review the security camera recordings. She reported to Captain Taylor only that Deputy Metcalf thought Respondent was sitting too close to Deputy Jacques, that Deputy Jacques denied the incident, and that Deputy Jacques would not file a complaint. On or about April 11, 2012, Deputy Jacques, in an effort to discourage Respondent’s attentions, advised Respondent that she had received a call from “higher-ups” inquiring whether Respondent had acted inappropriately, though in reality she had not. In response, Respondent requested that Captain Taylor conduct an investigation to clear his name, which would have, almost of necessity, involved reviewing the security camera recordings. For reasons that were unexplained, the request was not acted upon, and the security camera recordings were not reviewed or preserved. Even when Lieutenant Martin obtained the additional information that ultimately formed the basis for the complaint, including the serious and inflammatory allegation that Respondent placed Deputy Jacques in a headlock and attempted to drag her into the bathroom, she did not promptly file a complaint or advise anyone of the allegations so that the tapes could be preserved.7/ Rather, despite her professed concern for Deputy Jacques’ safety, she went on a two-week vacation to St. Georges Island. The preponderance of the evidence suggests that when Lieutenant Martin left for her vacation, tapes of the incident involving Deputy Jacques would not yet have been recorded over. Lieutenant Martin waited until May 23, 2012 to file the complaint, well beyond the time that recordings of the incident would have been recorded over. There was no rational explanation offered as to why Lieutenant Martin waited to file the complaint, particularly since some of the allegations in this case involve Respondent’s alleged acts towards Lieutenant Martin, acts that allegedly occurred over many years, and since Lieutenant Martin purportedly knew of others who were subject to Respondent’s advances. It is of significant concern to the undersigned that the report of the incident was made only after the time for which a video record would be available had elapsed. The incident that precipitated the investigation occurred on April 6, 2012. There were no witnesses other than Deputy Jacques and Respondent, thus leading to a “he said, she said” scenario upon which Respondent’s professional license rests. However, the unblinking eye of the security system was available for its intended use of resolving complaints and disputes had it been promptly reviewed. Paragraph 2.(a) - Julie Martin In paragraph 2.(a) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2006 and June 7, 2011, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Julie Martin, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Lieutenant Martin began her employment with the WCSO on September 14, 1999 as a dispatcher. In 2004, she was transferred to corrections for about one year, after which she was assigned to the booking room, a position she held until 2010. In 2010, she was transferred to Respondent’s shift at the jail. In February of 2010, Lieutenant Martin, who then held the rank of sergeant, was selected to attend the Academy. At the conclusion of training, she was promoted to the rank of lieutenant, the rank she has held since. At one time, Lieutenant Martin and Respondent were friends, socializing and dining with one another at their respective houses. Hands Down the Pants The most serious “allegation” (see Endnote 1) involving Lieutenant Martin was an incident that allegedly took place in the van in which Respondent “stuck his hands down my pants -- his fingers down my pants.” Lieutenant Martin testified that she was sitting next to Deputy Hummell, and Respondent and Deputy Metcalf were sitting in the back seat. She testified that Respondent stuck his hand between her shirt and her pants, and that the act was witnessed by Deputy Hummell. Deputy Hummell’s description of the incident was generally consistent with that of Lieutenant Martin. She testified that Lieutenant Martin and she were seated together on one of the bench-style seats. Lieutenant Martin was “leaned up,” talking to Deputy Alexander. Deputy Hummell testified that she turned to say something to Lieutenant Martin when she observed Respondent grab Lieutenant Martin by her belt and the top of her pants and pull her back. Deputy Hummell indicated that Lieutenant Martin “turned around and swatted at [Respondent] and told him to stop it.” Deputy Metcalf recalled the incident slightly differently, testifying that he was seated by himself in the back row of seats, and Respondent was seated next to Lieutenant Martin in a middle row. Lieutenant Martin was leaned forward in her seat talking to Ms. Hummel, who was seated in the next row forward. Deputy Metcalf admitted that leaning up over the seat in front could be dangerous if the driver, Deputy Gibson, was to slam on the brakes. They were all talking, when Deputy Metcalf observed Respondent stick his hand, palm facing out, inside the back of Lieutenant Martin’s pants. Respondent did not deny grabbing Lieutenant Martin by the top of her pants. He testified that Lieutenant Martin was leaned forward in her seat to see what the people in front were doing. Respondent testified credibly that he “reached up and grabbed her belt loop and told her to sit down before I have to do an incident report on why somebody got hurt and wasn't wearing a seat belt.” Respondent’s general description of the incident, though not the motive, is consistent with that of Lieutenant Martin and Deputy Hummell. Respondent’s account of the incident and his motive for grabbing Lieutenant Martin’s pants finds substantiation in Lieutenant Martin’s explanation of the reason that she stopped riding in the van, which was that “I had to work with him all day long and then I had to go to school with him, and I didn't want him to grab my pants and pull me back in my seat and tell me that, you know, it's a security risk that I'm sitting too far up in my seat, that I needed to be seated back. And I didn't want to have to deal with that every day.” That explanation corresponds perfectly with both the act and the intent described by Respondent. The evidence in this case, taken as a whole, demonstrates that the incident at issue was motivated by issues of safety and as a forceful means of getting Lieutenant Martin to stay seated in the van. The suggestion that it was for more salacious purposes is rejected. Lieutenant Martin also testified to a second incident in which she was leaning forward in her seat talking to another passenger. Respondent put his finger in her belt loop, pulled her back, and said that she needed to sit back in her seat. No other witness testified as to that incident. The incident as described, which is not itself sexual in nature and which was unaccompanied by sexual comments or innuendo, appeared, again, to be related to safety and Respondent’s desire to avoid the work of having to write an incident report. Other Alleged Incidents The remainder of Lieutenant Martin’s testimony regarding Respondent’s interactions with her consisted of a litany of incidents that occurred sporadically over the years. Lieutenant Martin testified that, in 2006 when she worked in booking, Respondent occasionally placed her in an arm bar,8/ that he would, on occasion, grab and pull her hair, and that one time Respondent poked Lieutenant Martin hard in the ribs and said “I bet Tommy [Lieutenant Martin’s husband] will like this bruise.” The incidents included no sexually suggestive comments or innuendo. Lieutenant Martin testified that on one occasion in 2010, while riding in the van to the Academy, she was lying down on the bench seat. Respondent reached over the seat and poked her in the stomach wanting her to wake up and “saying that I was not tired, I did not need to be sleeping on the van.” The evidence is not clear and convincing that the act of poking Lieutenant Martin in the stomach as described, which is not itself sexual in nature, and which was unaccompanied by sexual comments or innuendo, constituted sexual harassment. Furthermore, Lieutenant Martin testified that she never revealed that allegation until she was seated in the witness box testifying at the hearing. Therefore, that allegation could not have formed the basis for any allegation in the Administrative Complaint. At some time while she was under Respondent’s supervision, Lieutenant Martin was stationed in the control room. Respondent came in and sat next to her. Lieutenant Martin testified that Respondent pulled her chair around to face him and grabbed the top of her legs above the knee and squeezed. Lieutenant Martin did not report that incident to Captain Carroll during the course of his investigation. She further testified to another incident when Respondent came up behind her and grabbed her ponytail. Though Lieutenant Martin’s allegations were not specific as to time, it can be reasonably inferred that the incidents occurred at some time during the five-and-a-half year period alleged. However, there is no evidence that either incident formed the basis for any specific allegation in the Administrative Complaint. The incidents described included no corroboration, were not specific as to time, and none resulted in any contemporaneous report of the conduct to a responsible authority. The incidents described by Lieutenant Martin formed no basis for the May 23, 2012, complaint filed on behalf of Deputy Jacques. Many of the incidents described by Lieutenant Martin are consistent with the descriptions of the general level of workplace behavior that existed in the social atmosphere of the Wakulla County jail, and were not grossly out of line from the air of rude and crude horseplay and flirtatiousness that existed at the jail. The incidents described, if true, suggest that Respondent’s behavior was, at times, childish and unprofessional. However, this proceeding is not based on allegations that Respondent may have acted like a jerk,9/ but is based on allegations that Respondent engaged in identifiable acts of sexual harassment involving physical contact or misuse of position. The incidents described, occurring over a period of years, did not involve unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. The evidence was insufficient to demonstrate that the incidents were severe or pervasive enough to create an objectively hostile or abusive work environment, or were so objectively offensive as to alter the conditions of Lieutenant Martin’s employment. As to paragraph 2.(a) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2006 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Julie Martin. Paragraph 2.(b) - Lindsay Jacques In paragraph 2.(b) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Lindsay Jacques, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Deputy Jacques was first employed by the WCSO in 2006, when she was assigned to records, a position she held for approximately one year. She was then assigned to road patrol for a year and a half, and then to criminal investigations for approximately two years. Deputy Jacques was assigned to corrections in March 2010. The evidence suggests that, at one time, Deputy Jacques and Respondent were friends. When Deputy Jacques was on road patrol, she would occasionally ask Respondent to meet her outside when she was in the vicinity of the jail, where they would talk. Their conversations over time included, in addition to more mundane topics, matters of a personal nature. Deputy Jacques’ supervisor during the period in question was Lieutenant Martin, except when she was supervised by Respondent during the periods when shifts were being overlapped. Deputy Jacques’ primary duty station was Station 4, the control room for the “B side” of the jail, which housed female inmates and local inmates. Deputy Jacques understood that flirting at the jail was commonplace, and she participated along with other deputies. It was not unusual for deputies and employees to engage in banter in the nature of “hey, you look pretty today,” and “you're looking hot today.” Deputy Jacques did not consider that level of flirtatiousness to be of a sexual manner or inappropriate. Station 4 was in proximity to the quartermaster’s office, to which Respondent was assigned at some point after January 2011. Deputy Jacques testified that on a typical day, she would walk by the door to the quartermaster’s office more than 20 times. Respondent frequently called Deputy Jacques into the quartermaster’s office. Most of the times were for innocuous reasons, e.g., to look at emails he had received, or to show her pictures of his children or his dogs. Deputy Jacques testified that on some of the occasions she was summoned into the quartermaster’s office, Respondent would grab her knee, pull her hair, or place her in an arm bar. Deputy Jacques was sufficiently uncomfortable with Respondent’s conduct towards her that she instructed Deputy Metcalf to call her or come get her after 10 or 20 seconds if he saw her enter the quartermaster’s office. On or about March 14, 2012, Respondent called Deputy Jacques into the quartermaster’s office to advise her that she had been observed providing female inmates with extra blankets, which were considered to be contraband, but that if she gave him a kiss everything would go away. Deputy Jacques’ contemporaneous notes of the incident indicate that her response was “fuck you, write me up then.” There were no witnesses to the alleged incident, and the incident was not reported. The fact that Deputy Jacques could respond to a superior officer in that manner without retribution, and the fact Deputy Jacques was not disciplined for providing inmates with extra blankets despite the refusal of Respondent’s “offer,” suggests that the incident was one in keeping with the general flirtatiousness that was commonplace at the jail. On April 6, 2012, while filling in as Supervisor, Respondent assigned Deputy Jacques to Station 1, and Deputy Metcalf to visitation. The reassignments were consistent with Respondent’s practice of rotating shifts to familiarize employees with all duty stations. There were routinely two chairs positioned in the control room in front of the control board. It was not unusual for two people to be seated there, because “[i]t’s nice to have some help sometimes.” The evidence is persuasive that the control room, being a hub of activity at the jail and with people constantly coming in and out, usually had four to six chairs or more scattered about for officers to sit in. On the morning of April 6, 2012, Respondent came to sit next to Deputy Jacques at the control panel. While there, Deputy Jacques testified that Respondent was touching her leg and shoulders, pulling her hair, and poking her in the side. Respondent’s actions made Deputy Jacques feel very uncomfortable, and she asked him to stop without success. At some point during the day, as Deputy Jacques was standing near the Station 1 coffee machine, Respondent approached and placed her in an arm-bar while asking “does it hurt? Does it hurt?” Other than his hand, no other part of Respondent’s body was touching Deputy Jacques. Deputy Jacques asked Respondent to leave her alone. In response, Respondent placed her in a headlock from the side. Other than Deputy Jacques and Respondent, there was no live witness to the incident. Deputy Jacques testified that Respondent performed the headlock in an effort to pull her into the bathroom. She inferred that the move was for sexual purposes, an assertion vigorously denied by Respondent. The undersigned finds that, given the known presence of video and audio surveillance in the control room, and the frequency with which jail personnel came in and out of the control room, it is implausible to the point of disbelief that Respondent was attempting to drag Deputy Jacques into the bathroom in order to sexually force himself on her. Rather, as with many of the other incidents described herein, the pervasive sense was that Respondent was taking the roughhousing and horseplay that normally occurred at the jail to a degree that was more related to boorish and/or bullying behavior than to sexual behavior. On April 7, 2012, Lieutenant Martin was advised by Deputy Metcalf that he had observed Respondent sitting too closely to Deputy Jacques at the control panel, a situation that seemed inappropriate. Lieutenant Martin called Deputy Jacques to inquire about the incident, and later went to see Deputy Jacques for the same purpose. Deputy Jacques denied that anything untoward happened, but invited Lieutenant Martin “to look at the cameras” if she wanted to see what happened. On April 9, 2012, Lieutenant Martin related her discussion with Deputy Jacques to Captain Taylor. There is no evidence that Lieutenant Martin advised Captain Taylor of anything other than the allegation that Respondent was sitting too close to Deputy Jacques. She advised Captain Taylor that Deputy Jacques indicated that everything was “cool,” and did not want to file a complaint. There is no suggestion that any conduct involving arm-bars or the headlock was related to Captain Taylor. Lieutenant Martin did not suggest that the security tapes should be reviewed, and they were not. On April 11, 2012, Respondent approached Deputy Jacques in “A side Medical” to talk. There, in an effort to discourage Respondent’s childish and tiresome behavior, Deputy Jacques told Respondent that “higher-ups” had called her to inquire about Respondent’s harassment. Her statement, which was not true, had the desired effect, as Respondent engaged in no conduct felt by Deputy Jacques to be inappropriate after April 11, 2012. Between April 12, 2012 and April 17, 2012, Deputy Jacques engaged in a series of text messages with Karen Ward. On April 12, 2012, Deputy Jacques stated that “I could handle it..he [Respondent] never cross the line..u [sic.] know like vulgar or anything like that but it was extremely uncomfortable.” She further stated that “[b]ut look if station is being recorded they can c [sic.]...how he was acting and see that the shift was not exag[g]erating.” Deputy Jacques testified that she made the exculpatory comments because Ms. Ward “has a big mouth,” and she didn’t want her telling things to Lieutenant Martin. Believing she had put an end to Respondent’s behavior, Deputy Jacques just wanted the incident to go away. On April 17, 2012, Deputy Jacques texted Ms. Ward and stated that “I know how to kid around..we all flirt at the office..but when it's inappropriate, I say something n [sic.] I try to stop it.” At some point prior to the filing of the complaint, Lieutenant Martin approached Deputy Jacques to advise her that there were other officers to whom Respondent had acted inappropriately. As a result of that conversation, Deputy Jacques determined that she was not the only person who was the subject of Respondent’s inappropriate conduct. As a result, Deputy Jacques was emboldened, deciding that “I felt like if she's going to say something, I'm going to say something, too.” The evidence in this case is compelling that Respondent’s conduct towards Deputy Jacques was childish, boorish, and oft-times overly physical. The evidence is equally compelling that Deputy Jacques was justifiably sick of Respondent’s behavior. However, as will be discussed in greater detail herein, in order to find that Respondent violated professional standards, the evidence, taken as a whole, must produce a firm belief or conviction, without hesitancy, that Respondent engaged in identifiable acts of sexual harassment involving physical contact or misuse of position that rose to the level necessary to demonstrate that Respondent was not of good moral character. In this case, there are factors that prevent the establishment of the “firm belief or conviction” that Respondent’s interactions with Deputy Jacques rose beyond boorish and inappropriate behavior to the level of sexual harassment, i.e., sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, necessary to sustain the violations alleged. First are Deputy Jacques’ contemporaneous text messages that indicate Respondent never crossed the line or did anything that she considered to be vulgar. Second, is the social milieu of the Wakulla County jail, in which flirtatious behavior, horseplay, and pranks, often of a physical nature, were the norm, and was behavior engaged in by Deputy Jacques. In addition to the foregoing, Deputy Jacques testified that Respondent made inappropriate comments such as “you look good,” or “I love the way you bend over” on numerous unspecified occasions. She further testified that Respondent once made a sexual comment involving Deputy Jacques’ difficulty with conceiving children. Given the general theme of Respondent’s conduct, the undersigned is convinced that the comments as related by Deputy Jacques were accurate. However, Petitioner failed to elicit testimony as to when those comments were made. Given the burden of proof in this case, as discussed herein, that critical element of the allegations against Respondent -- as pled -- cannot be inferred. As indicated herein, the undersigned accepts that Respondent engaged in conduct that those in civilian life would find unacceptable in the workplace. However, the issue in this case is not whether Respondent acted in a manner unbefitting a supervisory officer of a sheriff’s department, but rather whether Petitioner met its burden of proving that Respondent’s conduct was “sexual harassment,” as defined, by clear and convincing evidence. As to paragraph 2.(b) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Lindsay Jacques. Paragraph 2.(c) - Lisa Hummell (n/k/a Lisa Hummell Crum) In paragraph 2.(c) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Lisa Hummell, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Detention Deputy Hummell was first employed by the WCSO in 2004. She began her career as a dispatcher, and then moved to the purchasing department. In 2006, she attended the Wakulla Correction Institute, and received her certification as a correctional officer. She then served as a detention deputy at the Wakulla County jail. Deputy Hummell was selected to attend the Academy from February 2010 until November, 2010. While attending the Academy, she was assigned as a road patrol deputy. While attending the Academy, Deputy Hummell rode in the van provided by the WCSO. The van was scheduled to leave the Wakulla County jail at 4:30 p.m. so as to allow time for the riders to get something to eat, and make it to the Academy for the start of classes at 6:00 p.m. On a number of occasions, Deputy Hummell was late arriving at the jail after completing road patrol. Respondent, who was the ranking officer in the van, rarely waited for Deputy Hummell, even when she called to let them know she was going to be running only five or ten minutes late.10/ As a result, Deputy Hummell would drive her patrol car to the Academy, and later ended up driving her personal vehicle. Deputy Hummell believed that Respondent did not want her riding in the van, which made her feel as though she was not part of the team. At one time, during a conversation with Deputy Hummell’s trainer and supervisor in the field training program, Captain Ganey, Deputy Hummell complained about Respondent directing the van to leave if she was late. During that conversation, Deputy Hummell stated that "[t]here's that Barwick. He's a snitch. Everything we say on that bus he goes back to Captain Taylor with.” Deputy Hummell felt as though Respondent treated her unfairly, which caused her significant aggravation. Deputy Hummell received her law enforcement certification on November 16, 2010, and returned to duty at the Wakulla County jail. She has been assigned to the Wakulla County jail since that time. At some time after having received her law enforcement certification, and after returning to duty at the jail, Deputy Hummell was assigned to Station 1 with Respondent. During the shift, she left her phone in the control room while attending to business elsewhere in the jail. When she returned, Respondent suggested he had reviewed photographs on her phone. According to Deputy Hummell, the photographs on her telephone included two of her in an unclothed state that she had taken to send to her boyfriend. Respondent insinuated that he had forwarded the photographs to himself. Over the next months, on five or six occasions, if Deputy Hummell had a disagreement with Respondent, or said something “smart-alec” towards him in a group, Respondent would pat his pocket where he kept his phone or say something like “you know what I got.” Respondent denied having accessed photographs from Deputy Hummell’s telephone. Deputy Hummell never saw the photographs on Respondent’s phone, and there was no physical evidence that Respondent actually saw or obtained the photographs of Deputy Hummell’s breasts. Deputy Hummell could recall no witnesses to any of the events regarding Respondent’s alleged access to her telephone, or to his implied threats to reveal the photographs. Deputy Hummell never complained about the incident to the WCSO human resource officer despite policies in place that “[s]exual harassment, battery-type -- anything in general that you didn't feel was comfortable” was to be documented and reported. Respondent’s alleged access of Deputy Hummell’s telephone involved no inappropriate touching. Based on the record of this proceeding, the evidence is not clear and convincing that the alleged incident occurred as described by Deputy Hummell. On a subsequent occasion, Respondent had access to Deputy Hummell’s telephone. The circumstances are in dispute, and in any event are not material. At the end of the incident, Respondent sent a text message from Deputy Hummell’s telephone to Karen Kemp, a WCSO dispatcher. The substance of the text was to the effect of “hey, I think you're sexy, we need to get together.” As it turned out, Ms. Kemp had given her old telephone to her 14-year-old son, who received Respondent’s message. Upon learning of the recipient, Respondent sought out Ms. Kemp to apologize and explain that the message was intended as a joke. The evidence suggests that all involved recognized the text as an act of obnoxiousness on the part of Respondent rather than a serious act of a sexual nature. Though Respondent’s act of texting Ms. Kemp from Deputy Hummell’s telephone was childish, it was not an act that constituted sexual harassment involving physical contact or misuse of position by inappropriate touching. Under the facts of this case, the text message to Ms. Kemp could not reasonably have created an intimidating, hostile, or offensive work environment for Deputy Hummell. During the hearing, testimony was elicited from Deputy Hummell regarding allegations of other incidents including Respondent’s response to a practical joke involving a photograph taken while he was sleeping on-duty with a coffee filter having been placed on his head by fellow officers, of Respondent placing Deputy Hummell in an arm-bar, of Respondent grabbing Deputy Hummell’s keys, and of Respondent “flicking” the antenna of Deputy Hummell’s radio, which she wore on her belt. There was no competent, substantial, and credible evidence that any of those incidents occurred on or between January 1, 2011 and April 7, 2012. As to paragraph 2.(c) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Lisa Hummell. Paragraph 2.(d) - Vickie Hughes In paragraph 2.(d) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Vickie Hughes, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Deputy Hughes has served as a detention deputy since 2005. In the period since, she has moved around, and has served a period at the Wakulla County jail during which Respondent was her supervisor. The period during which Deputy Hughes was supervised by Respondent was not specified. On two or three occasions over the years, Respondent brushed Deputy Hughes’ breast with his elbow. Each incident occurred at the doorway of Station 1. The area at the doorway of Station 1 is very narrow due to the location of the lieutenant’s duty desk and the edge of the control panel desk, which has created an opening to and from the control room through which two persons could not pass without turning sideways. Lieutenant Deal testified, credibly, that “if you turn sideways and you pass, you most likely are going to brush against each other.” The incidents described by Deputy Hughes were few in number, widely spaced in time, and were unaccompanied by any sexually suggestive comments. Deputy Hughes felt they were intentional because Respondent did not apologize but rather “had a smart look on his face and laughed about it.” Deputy Hughes’ impression of Respondent’s actions may have been influenced by the palpable animosity that she exhibited towards Respondent. In any event, there was insufficient evidence to infer any intent on Respondent’s part to brush Deputy Hughes’ breast in passing, and no clear and convincing evidence that the act constituted sexual harassment involving physical contact or misuse of position on the part of Respondent. Deputy Hughes could not place when the alleged breast brushes may have occurred. When asked specifically if they occurred after January 1, 2011, Deputy Hughes testified that “I don't know exactly when it -- I mean, I don't know exactly when it happened, the years. It could have happened before. It might have happened before. I mean, I've been there since 2005, so I don't know exactly when it happened.” Thus, there is insufficient evidence to support a finding that the incidents occurred between January 1, 2011 and April 7, 2012, as alleged. Deputy Hughes further testified that on one occasion, Respondent stated that “his goal was to get into her pants.” She did not write down an account of the incident “because I blew it off,” and did not otherwise report the incident. There were no witnesses to the incident, and it was denied by Respondent. Deputy Hughes testified that the incident occurred “way before the complaint was filed” on May 23, 2012, perhaps years before. Thus, there is insufficient evidence to support a finding that the alleged statement, even if made, was made between January 1, 2011 and April 7, 2012. As to paragraph 2.(d) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Vickie Hughes. Paragraph 2.(e) - Charlie Boyatt In paragraph 2.(e) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did then engage in an act or acts which constituted sexual harassment involving physical contact or misuse of position against Charlie Boyatt, by inappropriately touching and such activity created an intimidating, hostile, or offensive work environment for the victim. Ms. Boyatt was hired as an employee of the WCSO starting on December 25, 2009. In February 2010, she became a corrections officer assistant at the jail. She was moved back to dispatch in September 2010, back to corrections in January 2011, and back to dispatch in January 2012, a position that she remained in up to the time of the hearing. Ms. Boyatt was under Respondent’s supervision from February, 2010 until June or July 2010. When she started at the jail in February 2010, Ms. Boyatt did her training in the control room. After her training, and until her transfer to dispatch in September 2010, Ms. Boyatt was assigned to the control room during every shift. After Ms. Boyatt completed her training in 2010, Respondent would occasionally sit next to her at the control panel and monitors to talk. Ms. Boyatt testified that Respondent would occasionally reach across her chest to get something. Ms. Boyatt was not clear as to whether he may have brushed her breast when doing so, though she admitted that Respondent never deliberately grabbed her breasts. If she moved to get up, Respondent would catch her leg in between his knees. Ms. Boyatt further testified that on other occasions, Respondent would poke her in the ribs or under the arm at a pressure point. Ms. Boyatt’s descriptions of the incidents, which were denied by Respondent, were suggestive of boorishness rather than sexuality. During the period of Ms. Boyatt’s supervision by Respondent, she testified that Respondent squeezed her knee on several occasions while “messing around” with her, and placed her in an “arm-lock” on five or six occasions. Other than the incidents described, Respondent made no sexually suggestive comments, did not touch Ms. Boyatt’s breasts or buttocks, or engage in other acts that might be construed to be sexual harassment. Shortly after she started at the jail in February 2010, Ms. Boyatt testified that she was told by Lieutenant Martin that Respondent had bragged to Lieutenant Martin’s husband that he was having sex with Ms. Boyatt. There is no direct evidence of Respondent having made that comment other than Lieutenant Martin’s third-hand and hearsay statement. Ms. Boyatt never asked Respondent if he made the statement. Respondent denied that he made any such statement. Later, Ms. Boyatt testified that Respondent told her that his wife and children were out of town for spring break, and that he had the house to himself. Ms. Boyatt did not testify that there was any suggestion of an invitation in the comment. Though Ms. Boyatt testified that Respondent made her uncomfortable, “there really wasn't a whole lot I could do being under his supervision.” The evidence is clear and convincing that the incidents described by Ms. Boyatt, even assuming their truth, occurred in 2010 during the period that Ms. Boyatt was under Respondent’s supervision. After her return to the jail in January 2011, Ms. Boyatt was not under Respondent’s supervision. She was assigned by her supervisor to the control room every once in a while, but her normal duty station for the period from January 2011 until January 2012 was on “A-side” with the immigration inmates. There was no competent, substantial, and credible evidence of Ms. Boyatt having any contact with Respondent while assigned to the jail in 2011. Ms. Boyatt testified that “just a few times” after her return to dispatch in January 2012, at which time she was pregnant, Respondent would “pop up” and grab her shoulders. She would tell him to “quit or go on, because I would be working.” There was nothing in the testimony or otherwise of any sexual intent on Respondent’s part, or that Ms. Boyatt ascribed any sexual meaning to the visits. The act of grabbing Ms. Boyatt by the shoulders was not inconsistent with the social norms that existed at the Wakulla County jail as described by several credible witnesses, including Deputy Metcalf who indicated that such was commonplace. Ms. Boyatt could not identify any “exact date” on which those incidents occurred. Respondent never reported any of the incidents described in her testimony. The greater weight of the competent, substantial, and credible evidence in this case demonstrates that the events described in paragraphs 128 through 133 occurred prior to January 1, 2011. The evidence is not clear and convincing that the incidents during which Respondent grabbed Ms. Boyatt by the shoulders in 2012 occurred on or before April 7, 2012. Furthermore, the evidence is not clear and convincing that those incidents, which are not themselves sexual in nature, and which were unaccompanied by sexual comments or innuendo, were such to constitute sexual harassment. As to paragraph 2.(e) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that, between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent engaged in acts which constituted sexual harassment involving physical contact or misuse of position against Charlie Boyatt. Paragraph 2.(f) - Lisa Hummell (n/k/a Lisa Hummell Crum) In paragraph 2.(f) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did unlawfully commit a battery upon Lisa Hummel, by actually touching or striking Lisa Hummell or intentionally causing bodily harm to Lisa Hummell against her will. As set forth in paragraphs 109 through 115 above, Petitioner failed to prove by clear and convincing evidence that Respondent touched Deputy Hummell at any time on or between January 1, 2011 and April 7, 2012. Thus, as to paragraph 2.(f) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent touched, struck, or intentionally caused bodily harm to Deputy Hummell against her will. Paragraph 2.(g) - Charlie Boyatt In paragraph 2.(g) of the Administrative Complaint, Petitioner alleged that: On or between January 1, 2011 and April 7, 2012, the Respondent, Robert S. Barwick, did unlawfully commit a battery upon Charlie Boyatt, by actually touching or striking Charlie Boyatt or intentionally causing bodily harm to Charlie Boyatt against her will. As set forth in paragraphs 128 through 133 and paragraph 136 above, Petitioner failed to prove by clear and convincing evidence that Respondent touched Ms. Boyatt at any time on or between January 1, 2011 and April 7, 2012. Rather, the evidence clearly establishes that most of the incidents described by Ms. Boyatt occurred in 2010. As to the incidents in which Respondent “grabbed” Ms. Boyatt by the shoulders in 2012, the evidence does not establish that the incidents occurred on or before April 7, 2012. Thus, as to paragraph 2.(g) of the Administrative Complaint, Petitioner has failed to prove by clear and convincing evidence that between January 1, 2011 and April 7, 2012, the dates specified in the Administrative Complaint, Respondent touched, struck, or intentionally caused bodily harm to Ms. Boyatt against her will.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 30th day of May, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 30th day of May, 2014.
The Issue Whether Respondent used excessive or unnecessary force on Stephen Cody Kester on July 15, 2000, as set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Victor Bosch, is a certified Law Enforcement Officer in the State of Florida. He was issued Law Enforcement Certificate Number 170035 on February 26, 1997. He was also issued Auxiliary Law Enforcement Certificate Number 163915 on June 27, 1996, and Correctional Officer Certificate Number 160836 on March 27, 1996. On June 15, 2000, Respondent was employed by the Charlotte County Sheriff's Department as a Deputy First Class. On July 15, 2000, Stephen Cody Kester, a seventeen- year-old juvenile, was in attendance at a teen dance conducted by the Charlotte County Parks and Recreation Department at the Tringali Center located in Englewood, Charlotte County, Florida. During teen dances at the Tringali Center, it is common practice for teenagers to step outside of the center, with permission of the adult sponsors, to use wireless phones due to the volume of music, if they stand near the Deputy on security duty by the front door. Rules regulating the dances conducted at the Tringali Center are not written or posted in any manner, but left to the discretion of individual counselors. However, teenagers who leave the premises during a dance, without permission, are not permitted to return to the dance. Kester had asked and was given permission to go outside of the center to use his wireless telephone. Upon leaving the center, Kester informed Respondent that he had permission to use his wireless phone. Kester stepped several feet away from Respondent, and out from under the overhang at the Tringali Center, but within clear sight of Respondent. Respondent became upset that Kester moved away from him. He also refused to accept Kester's statement that he had permission to be outside in order to use his wireless phone and then return to the dance. When Kester tried to re-enter the center, Respondent placed Kester in an arm lock, told him he could not re-enter the premises, and forced him to leave the area. Kester was not a threat to Respondent, nor was he placed under arrest. As a result of the arm lock placed on Kester, he was taken to an emergency room by his mother and subsequently diagnosed with an acute strain, left shoulder. At the time of the incident in question, Kester suffered from a brain tumor that was life threatening, and any sudden movement or trauma to the head could have resulted in dire consequences. The Tringali Center had no hard and fast rules concerning leaving the building to use a wireless phone. As long as the individual stayed in the area of the overhang and the deputy outside was informed that permission had been granted, then it was acceptable for the teenager to return to the dance. The amount of force used by Respondent to restrain Kester was excessive and unnecessary. Respondent's explanation that the arm lock technique he used was acceptable practice in the law enforcement community and that the level of force used was not harmful to Kester is not credible, nor persuasive. Prior to this incident, Respondent was employed in law enforcement for seven years and had no prior disciplinary incidents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. Respondent's certification be suspended for six months and successful completion of such training or retraining deemed appropriate by the Commission. DONE AND ENTERED this 17th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 December, 2001. COPIES FURNISHED: Victor Bosch 3394 South Sumter Boulevard North Port, Florida 34287 Linton B. Eason, Esquire 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 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent Eric Runge holds an inactive correctional officer certificate bearing number 502-2839. On January 9, 1983, the Respondent Runge was employed as a correctional officer at the Hendry Correctional Institute. On that date, the Respondent and four other officers were involved in the movement of a prisoner, Raymond Russell Ford, from one confinement area to another. Prior to the transfer, a supervisor, Lt. McNaughton, met with the officers involved in the transfer and explained to them that he wanted to see the inmate hurt. The officers, including the Respondent, went to the inmate's cell and found him asleep. Ford was awakened by one of the officers and handcuffs and leg irons were secured to his hands and feet. During the transfer, the inmate was placed on the ground several times, here he was struck and kicked by three of the officers. The Respondent was approximately 20 feet in front of the inmate when this occurred. The Respondent and another officer helped the inmate to his feet and turned him over to Sergeants Thompson and DeSilvestri. The inmate was tripped repeatedly by the two officers. This was visible to the Respondent since he was approximately 15 feet behind the inmate and escorting officers. At no time did the inmate fight with the officers or physically resist when they tripped and hit him. When the inmate arrived at his assigned cell, the Respondent and Officer Wilkerson contacted Betty White, a medical technician, in order to alert her of possible injuries to the inmate. Ford's injuries were not serious and consisted of multiple abrasions and scrapes to the face, legs and arms. When this incident came to the attention of prison authorities, all the officers involved were requested to give statements under oath concerning the transfer of the inmate. The Respondent was aware that he was required by Department of Corrections rules to truthfully answer inquiries made by the prison inspector. However, the Respondent admitted violating Department rules by falsifying his report to the prison inspector by denying that excessive force was used during the transfer of the inmate. This false report was made as part of an unsuccessful attempt by the officers involved to cover up the incident. As a result of this incident, several officers lost their jobs at Hendry and the Respondent's effectiveness as a correctional officer has been seriously reduced due to his role in the transfer and subsequent cover up. The involved officers are labeled as "dirty employees" which limits their ability to effectively discharge their duties inside the prison.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner suspending the certificate of the Respondent Eric C. Runge for three months. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1984. COPIES FURNISHED: Dennis S. Valente, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32301 Janet E. Ferris, Esquire General Counsel Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Eric C. Runge 1643 North Flossmore Road Fort Myers, Florida 33907 Robert R. Dempsey, Executive Director, Dept. of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 83-2302 CJSTC CASE NO. CORO18-0274 ERIC C. RUNGE Certificate Number: 502-2839 Respondent. /
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)
