Findings Of Fact The Petitioner, Judge L. Williams, age 58, has been a resident of Florida for approximately 40 years, except for employment related intervals. He has a high school education, received an honorable discharge from the U.S. Navy after more than three years of service, was employed in the merchant marine service for approximately 11 years, and retired from Exxon Company, U.S.A., after almost 20 years. Since the Petitioner retired in 1975, he has held various jobs in Jacksonville. Some of his employers have been Southland Corporation (7-11 Stores), Oxford Security, and Pinkertons of Florida. The Petitioner admits having an arrest record going back to the year 1949, and continuing to June of 1979, for various charges, but he has never been convicted of a felony. He has never been arrested for an offense involving the use of a firearm, or for a crime relating to property such as burglary or larceny, and he has never lost his civil rights. However, the Petitioner has had a sexual problem. In 1951 be was arrested in Los Angeles, California, for sex perversion involving a minor, and convicted on his guilty plea. He served 30 days, after which his mother convinced him to be hospitalized to treat his sexual problem. Nevertheless, in 1954 the Petitioner was arrested in Las Vegas, Nevada, on a charge of sodomy, and paid a fine. Again, in 1956, the Petitioner was arrested in Jacksonville, Florida, on a charge of molesting minors, and convicted. He served 30 days. Finally the Petitioner's record of sex related offenses concluded in Norfolk, Virginia, in 1971 when he was arrested on a charge of soliciting for immoral purposes. He posted bond which was forfeited when he failed to appear for trial. The Petitioner also has had a problem with alcohol, stemming back to 1949 when he was arrested for driving while intoxicated in San Francisco, California. Other alcohol related offenses occurred in 1956 in Las Vegas, and in Jacksonville, Florida, in 1958, 1962, 1968, and as recently as 1979 when he was arrested on a driving while intoxicated charge. The Petitioner admits to having been affected by a social problem which he describes as drinking too much. However, he asserts that this problem, as well as his former sexual problem, are not present in his life now. The Division of Licensing has issued a Class D Unarmed Security Guard License to the Petitioner, which permits him to secure employment as an unarmed guard. The Petitioner, however, contends that even with the problems be has had in the past, and in spite of his arrest record, there is nothing in his background to demonstrate violence, and he is completely rehabilitated now from both sexual and alcohol problems. Without a gun permit, he contends that employment as a security guard is difficult to find, hard to keep, and pays less than an armed guard., The only evidence presented by the Petitioner was his own self-serving testimony, and two letters relating to his character. This is insufficient and unconvincing proof of rehabilitation from his admitted problems related to sex and alcohol, in view of the recentness of the recurrence of these problems. The charge in 1971 in Norfolk is 10 years old, but some 15 years elapsed between the sex related arrest in 1956 and the 1971 occurrence. The 1979 arrest for driving while intoxicated is only 2 years old. The totality of the evidence does not support the Petitioner's uncorroborated assertion that he is now fully rehabilitated, and does not support a finding that the Petitioner is of good moral character, or that he is fit to be licensed to carry a firearm.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Judge L. Williams for a Class G security Guard License, be denied. THIS RECOMMENDED ORDER entered on this 13th day of August, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS 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 August, 1981. COPIES FURNISHED: Stephen O. Parker, Esquire 607 Florida Theatre Building 129 East Forsyth Street Jacksonville, Florida 32202 James V. Antista, Esquire Room 1501 The Capitol Tallahassee, Florida 32301
The Issue Whether Petitioner (“Holly Mathis” or “Ms. Mathis”), in contravention of the Florida Civil Rights Act of 1992, sections 760.01 through 760.11 and 509.092, Florida Statutes (2014),1/ experienced sexual harassment and/or disparate treatment during her employment at Respondent, O’Reilly Auto Parts (“O’Reilly”).
Findings Of Fact O’Reilly is a retail distributor of automobile parts headquartered in Springfield, Missouri. On approximately August 11, 2014, Ms. Mathis began working at an O’Reilly’s store in Panama City Beach, Florida (“store no. 4564”). Her duties included pulling automobile parts from the store’s inventory and using an O’Reilly’s-owned vehicle to deliver automobile parts to mechanics in the surrounding area. Ms. Mathis was the only female employee at store no. 4564. Upon beginning her employment with O’Reilly, Ms. Mathis received a copy of the O’Reilly Auto Parts Team Member Handbook (“the Handbook”) detailing policies, benefits, and the responsibilities of O’Reilly’s employees. One portion of the Handbook specifies that O’Reilly’s employees “are not discriminated against on the basis of race, religion, color, national origin, sex, sexual orientation, pregnancy, age, military obligation, disability, or other protected class as defined by federal, state or local laws.” Another portion of the Handbook addressed harassment and stated that “[a]buse of other team members through ethnic, racist, or sexist slurs or other derogatory or objectionable conduct is unacceptable behavior and will be subject to progressive discipline.” This portion of the Handbook continued by describing sexual harassment as follows: Sexual harassment is a specific form of harassment that undermines the integrity of the employment relationship – it will not be tolerated. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment. Submission to or rejection of the conduct is the basis for an employment decision affecting the harassed team member. The harassment substantially interferes with a team member’s work performance or creates an intimidating, hostile, or offensive work environment. This portion of the Handbook also instructed employees how to report harassment: If you feel you have been discriminated against or have observed another team member being discriminated against due to race, color, religion, national origin, disability, sex, age or veteran status, you should immediately report such incidents to your supervisor/manager, local Human Resources representative, the corporate Human Resources Department, or anonymously via the company’s T.I.P.S. Hotline at 1-800-473-8470 without fear of reprisal. A prompt, thorough investigation will be made as confidentially as possible. Appropriate action, up to and including termination, will be taken to ensure that neither discrimination nor harassment persists . . . . The Handbook instructs an O’Reilly’s employee with work-related concerns to bring them to the attention of his or her supervisor. If the work-related concern involves that employee’s supervisor, then the Handbook instructs the employee to “speak directly with the next level of supervision.” Store no. 4564 had a poster notifying employees that sexual harassment is illegal. The poster stated that: If you experience or witness sexual harassment, report it immediately to your supervisor or the Human Resources Department without fear of retaliation. The company will promptly investigate all complaints as confidentially as possible. If the company concludes that sexual harassment did occur, disciplinary action will be taken with the offender(s) up to and including termination. The poster listed two “hotline” phone numbers that O’Reilly’s employees could utilize to report sexual harassment. Also, the Handbook states that “[s]moking, eating, and drinking are not allowed in company vehicles, and team members are not permitted to possess food or beverages, including water, within the cab of a store delivery vehicle.” As noted above, Ms. Mathis began working for O’Reilly on approximately August 11, 2014. She typically worked from 8:00 a.m. to 5:00 p.m. on Wednesdays, Thursdays, and Fridays. Ms. Mathis’ hiring by O’Reilly was probably facilitated by the fact that she had previously worked with the store’s general manager (Paul Stephenson) at an Advance Auto Parts store. Ms. Mathis considered Mr. Stephenson to be a “big brother.” However, in September of 2014, Mr. Stephenson began directing sexual comments toward Ms. Mathis, and inappropriate conduct by Mr. Stephenson continued through April of 2015.2/ During Ms. Mathis’ employment with O’Reilly, Mr. Stephenson was the highest-ranking employee at the Panama City Beach store. Therefore, Mr. Stephenson had supervisory authority over Ms. Mathis. On April 4, 2015, Ms. Mathis and Mr. Stephenson were working at store no. 4564. When Ms. Mathis asked to leave early so that she could spend time with her newborn, Mr. Stephenson repeatedly asked her to expose her breasts to him. Ms. Mathis refused Mr. Stephenson’s requests but was eventually allowed to leave work early. However, Ms. Mathis had been under the impression that she would not be allowed to leave early unless she complied with Mr. Stephenson’s request. On approximately April 13, 2015, Ms. Mathis applied for a position at an Autozone store approximately five minutes from store no. 4564. By April 14, 2015, Ms. Mathis had secured a new position at that Autozone store and submitted a letter of resignation to O’Reilly on April 14, 2015. Mr. Stephenson’s inappropriate conduct did not stop after Ms. Mathis submitted her letter of resignation. As discussed in her Petition for Relief, Mr. Stephenson attempted to touch her in an inappropriate manner many times on April 15, 2015, and succeeded in doing so on April 16, 2015. Ms. Mathis reaffirmed that statement during her testimony at the final hearing. The undersigned finds Ms. Mathis’ testimony regarding Mr. Stephenson’s conduct in April of 2015 to be credible. April 16, 2015, was Ms. Mathis’ last day of work at store no. 4564, and she began working for Autozone on April 17, 2015. In addition to Mr. Stephenson’s inappropriate conduct, Ms. Mathis asserts that she was subjected to disparate treatment by her direct supervisor, William Yohe. Specifically, Ms. Mathis testified that Mr. Yohe would belittle her by calling her “stupid” in front of co-workers and customers. Male employees did not experience such verbal abuse. In addition, Mr. Yohe allegedly allowed male drivers to decline deliveries without giving Ms. Mathis the same option. When a male driver declined a particular delivery, then Ms. Mathis was required to handle it. Also, Mr. Yohe allegedly allowed male drivers to have food and beverages in the O’Reilly-owned delivery vehicles. However, Mr. Yohe sent Ms. Mathis home early on April 10, 2015, for having a Gatorade in a delivery vehicle. With the exception of family and friends, Ms. Mathis told no one (including no one with authority over Mr. Stephenson and Mr. Yohe in O’Reilly’s chain-of-command) of the sexual harassment and disparate treatment she experienced at store no. 4564. Ms. Mathis did not report the sexual harassment and disparate treatment to anyone associated with O’Reilly because she was worried that Mr. Stephenson or Mr. Yohe would learn of her complaints and fire her. As a single mother of a newborn, she could ill afford to be out of work. As for the anonymous T.I.P.S. Hotline in the Handbook, Ms. Mathis was concerned that her anonymity could not be maintained because she was the only female employee at store no. 4564. The undersigned finds that Ms. Mathis proved by a preponderance of the evidence that Mr. Stephenson sexually harassed her in April of 2015 as described above. There was no reliable evidence to rebut Ms. Mathis’ allegations regarding Mr. Stephenson. For example, another driver at store no. 4564 testified that he never observed any behavior towards Ms. Mathis that amounted to a violation of O’Reilly’s policies. However, that testimony and his written statement were of little use because the other driver worked Mondays and Tuesdays while Ms. Mathis usually worked Wednesday through Friday. Mr. Stephenson did not testify during the final hearing. He did give a written statement to O’Reilly in which he denied any inappropriate conduct of the nature described by Ms. Mathis. However, and as explained in the Conclusions of Law below, Mr. Stephenson’s written statement was hearsay, and it did not supplement or corroborate any non-hearsay evidence. In addition, several other O’Reilly’s employees submitted written statements explaining that they had never seen any discrimination at their workplace and/or that they were unaware of any discrimination occurring at their workplace. However, those employees did not testify, and their written statements did not supplement or corroborate any non-hearsay evidence. Mr. Yohe gave a written statement in which he noted that no one had complained to him about being sexually harassed. However, and as noted above, Ms. Mathis told no one other than friends and family about her experiences at store no. 4564. While Ms. Mathis proved by a preponderance of the evidence that she was sexually harassed by Mr. Stephenson during her employment at O’Reilly, she did not prove by a preponderance of the evidence that she was subjected to other types of disparate treatment. Mr. Yohe denied verbally abusing Ms. Mathis, and O’Reilly’s witnesses persuasively testified that male and female drivers were treated equally with regard to having prohibited items in O’Reilly-owned delivery vehicles. As for Ms. Mathis’ assertion that she was forced to make deliveries that male drivers declined, Mr. Yohe rebutted that assertion by testifying that Ms. Mathis was unable to successfully work the front counter at store no. 4564 because she had yet to accumulate sufficient knowledge of automobile parts. Therefore, if the front counter was short-staffed at certain times, then a male driver would be asked to work the front counter and Ms. Mathis would have to handle all of the deliveries during that time period. The undersigned also finds O’Reilly had reasonable measures in place to prevent and promptly correct any sexually harassing behavior. It is also found that Ms. Mathis failed to take advantage of the preventative or corrective opportunities offered by O’Reilly.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Holly Mathis’ claim for relief. DONE AND ENTERED this 13th day of July, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 13th day of July, 2016.
The Issue Whether Petitioner, Andrew Anthony Taylor (“Petitioner”), timely filed a petition under the Victims of Wrongful Incarceration Act, chapter 961, Florida Statutes (2016)(“the Act”); and, if so, whether Petitioner demonstrated by clear and convincing evidence, his actual innocence, thereby entitling him to monetary compensation under the Act.
Findings Of Fact Petitioner seeks compensation pursuant to the Act after serving a prison term of 25 years for the sexual abuse of his stepdaughter, C.J. The jury verdict was vacated after C.J., in 2014, recanted her accusation that Petitioner sexually abused her in 1990, when she was eight years old. The undersigned will begin with a discussion of the events in 1990, when C.J. first reported the allegation of sexual abuse against Petitioner to Dr. Valerie Rao, a rape treatment medical examiner. On the evening of March 10, 1990, C.J. was brought to the Jackson Memorial Hospital Roxcy Bolton Rape Treatment Center by her mother and grandmother, at which time C.J. came under the care of Dr. Rao. Dr. Rao obtained a detailed history from C.J., during which C.J. reported that she had been sexually abused by her stepfather, “Andrew,” at two different locations--her old house and her new house. According to C.J., the most recent sexual encounter was when she was awoken by Petitioner on “Friday night,” March 8, 1990, and told to get up and go to her mother’s bed. C.J. did so, and Petitioner then told her to take off her pajamas, which she did. According to C.J., Petitioner got on top of her, put his “private part” in her, began kissing her, and put his mouth on her “private part.” C.J. also stated Petitioner made her touch his “private part,” and that he touched her in the anal area. C.J. also stated Petitioner often put his “private part” in her mouth. C.J. also stated Petitioner told her that if she told anyone, he would kill her. After obtaining the history, Dr. Rao examined C.J. and observed multiple bruises on her right arm and thighs, and abrasions on her back and on her left breast. The bruises and abrasions were caused when C.J.’s mother beat her with a baseball bat after C.J. told her mother of Petitioner’s sexual abuse. Dr. Rao immediately reported the mother to law enforcement, and C.J.’s mother was arrested at the rape treatment center for aggravated child abuse. Dr. Rao conducted a vaginal examination of C.J. and used a colposcope to observe and document the status of C.J.’s hymen. Dr. Rao observed and documented several healed tears of the hymen, which made the opening of C.J.’s hymen bigger than it should be for a child of her age. According to Dr. Rao, C.J. did not show any natural signs of progression of the hymen tissue that might be present due to a child approaching puberty. Dr. Rao persuasively and credibly testified at hearing that C.J.’s history was consistent with her physical examination. According to Dr. Rao, the healed tears could have resulted from Respondent “trying to push his penis into her” consistent with C.J.’s history. Dr. Rao acknowledged the tears also could have been caused by a finger, a pencil, or any object that is bigger than the opening of the hymen. However, no evidence was presented at hearing indicating that a finger, pencil, or any other object was placed in the opening of C.J.’s hymen. Dr. Rao further acknowledged there was no physical evidence that she could discern or collect that identified Petitioner as the assailant in this case. However, in 1990, obtaining DNA samples and the gathering of other types of physical evidence in an effort to specifically identify perpetrators of sexual abuse were not as advanced and reliable as it is today. Following Dr. Rao’s examination on March 10, 1990, C.J. was separated from her mother, and her mother no longer had custody of her. C.J. lived with her maternal great grandmother, and without her mother in her life, until she was 16 years old. On March 27, 1990, Mercy Restani, a trained interviewer who was employed by the Dade County Children’s Center within the office of the State Attorney, interviewed C.J. at the children’s center. C.J. provided a detailed history to Ms. Restani. C.J. told Ms. Restani that the sexual abuse by Petitioner happened in the old house and at the new house. C.J. told Ms. Restani that Petitioner would get her out of her bedroom and take her into her mother’s bedroom. C.J. told Ms. Restani that Petitioner would touch her “pocketbook” (the child’s word for a vagina) with his “private” (the child’s word for penis). C.J. told Dr. Restani that Petitioner got on top of her, that he moved very fast, and that it hurt when he did so. C.J. said Petitioner touched her breasts, put his mouth on her “pocketbook,” and his “private” in her mouth. C.J. also told Ms. Restani that Petitioner told her he would kill her if she told anyone. Ms. Restani asked C.J. if she had told her mother or anyone about what had happened to her. C.J. told Ms. Restani that she did not tell her mother because she was afraid. C.J. told Ms. Restani that her mother “had been asking her for several days if Andrew had been messing with her.” When C.J. eventually told her mother what had happened, C.J. said her mother beat her with a baseball bat. On April 3, 1990, C.J. was interviewed by a clinical forensic psychologist, Manuel E. Alvarez, Ph.D. The purpose of the interview was to assess C.J.’s current mental status and emotional therapeutic needs. According to Dr. Alvarez, C.J. was able to distinguish between the truth and a lie. C.J. had the intelligence to comprehend what had happened to her, to be able to relate it to others, and she was competent to testify. C.J. provided a detailed history to Dr. Alvarez. Dr. Alvarez observed that C.J. was able to provide a synopsis of her living arrangements at the time of the incidents. C.J. identified her stepfather, “Andrew,” as the perpetrator of the sexual abuse. C.J. told Dr. Alvarez it occurred at the old house and current house. C.J. told Dr. Alvarez it occurred when Petitioner would wake her, take her into the room, and tell her to get onto the bed. C.J. was reluctant to verbally tell Dr. Alvarez what Petitioner did to her, but C.J. wrote it down on a piece of paper (Petitioner’s Exhibit 4) in her own handwriting: He would get on me. He would start moving fast on me. He would take out his private part. On my private part and In my mouth. C.J. also told Dr. Alvarez that after the incidents, Petitioner threatened to kill her if she told anyone about it. On April 5, 1990, C.J. executed an affidavit, attesting to the fact of her name, that she was eight years old, that she lived with her mother and Petitioner at a specific street address in Dade County, Florida, and that: Early in the morning on Friday, March 9, 1990, Andrew woke me up and took me to his bedroom. Andrew told me to take off my panties. He touched my breasts. He put his private part into my pocketbook. It hurt. He kissed me on my mouth and on my pocketbook. He had done this before. He told me he would kill me if I told. My mother asked me if anyone was messing with me. For several days I wouldn’t tell her. When I did tell her what Andrew did, she beat me with a baseball bat. In August 1990, C.J.’s mother entered a plea of nolo contendere to the offense of aggravated child abuse against C.J. She was adjudicated guilty, sentenced to community control, and ordered not to have any contact with C.J. until approved by the court. On October 22, 1990, C.J. gave a videotaped deposition in Petitioner’s criminal case, in which she provided details of the sexual abuse by Petitioner. In the deposition, C.J. described how Petitioner woke her up, took her to her mother’s room, touched her “pocketbook” with his mouth, and placed his “wee-wee” in her “pocketbook.” C.J. testified he moved his body around while putting his “wee-wee” in her “pocketbook,” and that it hurt when he did so. She testified that on another evening, Petitioner woke her up again, took her to her mother’s room, and touched her “pocketbook” with his hand moving up and down as he did so. She testified it happened at the new house and at the old house. Petitioner’s criminal jury trial was held in March 1991, before the Eleventh Judicial Circuit in and for Dade County, Florida, in the case of State of Florida v. Andrew Anthony Taylor, Case No. F90-009928. At Petitioner’s criminal trial, C.J. testified via closed circuit television that Petitioner came to her bedroom, woke her up, and took her to her mother’s room. C.J. testified that she was wearing pajamas and panties and that Petitioner removed them. Using anatomically correct dolls, C.J. showed the jury that Petitioner touched her vagina with his hand and put his mouth on her breasts. She further indicated that Petitioner put his mouth on her vagina and demonstrated how he put his penis in her mouth and vagina. C.J. testified that it hurt when Petitioner placed his penis in her “private part.” She testified she did not tell her mother about this that night because Petitioner said he would do something bad to her. C.J. testified that another incident occurred that same week where Petitioner did the same things to her. C.J. also testified Petitioner put something “greasy” on his “private part” before he put his “private part” in her “private part.” C.J. indicated Petitioner’s sexual abuse of her also occurred at the old house. C.J. testified that when she told her mother about Petitioner’s sexual abuse of her after the last incident, her mother became upset and hurt her. C.J. testified that when she told Dr. Rao she got all the bruises when her mother hit her with a baseball bat, it was the first time her mother ever hit her with a bat. C.J. testified she has not been able to live with or have contact with her mom since her mother hurt her. C.J.’s mother did not testify at the criminal trial against Petitioner because she had an open warrant for her arrest at the time for violating her community control. Petitioner testified at his criminal trial. Although Petitioner denied he sexually abused C.J., he acknowledged that he was C.J.’s stepfather; he married C.J.’s mother in 1989; he had a son with C.J.’s mother in 1998; he was having an extramarital affair with another woman; and while he divided his time between Maryland and Miami because of work, he was sleeping in the same home as C.J. during the timeframe that C.J. indicated she had been sexually abused by him. Following the criminal trial, Petitioner was convicted on March 15, 1991, of three counts of capital sexual battery and one count of lewd and lascivious behavior for the sexual abuse of C.J. Petitioner was sentenced to life in prison on the three capital offenses. The judgment and sentences were per curiam affirmed on appeal in Taylor v. State, 610 So. 2d 644 (Fla. 3d DCA 1992). After reporting the incidents of sexual abuse, C.J. went through counseling two times per week for several years. At no time did C.J. tell any therapists that she was not sexually abused by Petitioner. In 2006, C.J. was approached at her grandmother’s home by a male private investigator for Petitioner. The investigator wanted to ask C.J. questions about what happened with Petitioner, but C.J. refused to speak with the investigator. In either late 2013 or early 2014, C.J. was again approached by a private investigator for Petitioner, this time a female who came to C.J.’s place of employment (“Walmart”). The investigator wanted to ask C.J. if anything had happened with Petitioner. In response, C.J. immediately told her “no.” The investigator then gave C.J. a card, and C.J. told the investigator she would call her in couple of weeks. On February 17, 2014, C.J. executed an affidavit formally recanting the accusation that Petitioner sexually abused her when she was eight years old. In this affidavit, C.J. asserted now, at the age of 32, that she made the allegation because her mother was either drunk or high on drugs who would ask her “if anybody touched me inappropriately.” C.J. asserted that late one night after telling her mother that nobody touched me, her mother beat her with a baseball bat and started yelling, “did Andrew touch you.” C.J. asserted that after telling her mother no, her mother began to beat her and beat her for hours. C.J. asserted that after an extensive beating, she told her mother that “Andrew” had touched her so that she would stop beating her, and after telling her that Andrew touched her, the beating stopped. However, by this time, C.J. had developed a close relationship with her half-brother Andrew Taylor, Jr. C.J. further asserted: A while back, I began to talk with my half- brother, Andrew Jr., and would see him interacting with his own son. This started me thinking about what I had done and only I knew the real truth that Andrew was innocent. My conscience started bothering me every time I would see Andrew, Jr. playing and interacting with his son and it got to the point where I couldn’t sleep and hardly eat. I finally called my half-brother, Andrew Jr., and told him I needed to meet with him and explain what had happened regarding his father. I told Andrew Jr. that his father never touched me or bothered me sexually and that I was so sorry for his dad not being in his life because of what I did. I asked Andrew Jr. to forgive me and he agreed. I also asked Andrew Jr. what I should do and who I could write in order to correct this situation. Investigator Jeannie Rogers came to see me a few months ago and spoke to me about coming forward. I have finally gotten the courage to stand up and do what is right. On June 23, 2014, Petitioner filed a Motion for Post- Conviction Relief Based on Newly Discovered Evidence in Case No. F90-009928. The newly discovered evidence was C.J.’s recantation of the sexual abuse allegation against Petitioner. On April 2, 2015, an evidentiary hearing was held on the motion before Circuit Court Judge Diane Ward. At the hearing before Judge Ward, Petitioner presented the live testimony of C.J., who testified she made up the allegation that Petitioner sexually abused her because her mother beat her with a baseball bat to make her provide a false allegation against Petitioner. C.J. testified she told her mother Petitioner sexually abused her because she wanted the beating to stop. However, C.J. also testified when she told her mother that Petitioner sexually abused her, the beating did not stop, and her mother continued to beat her with the baseball bat for not telling her about the sexual abuse sooner. During the hearing before Judge Ward, C.J. acknowledged she provided specific details of sexual abuse by Petitioner to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her prior testimony in the underlying criminal proceedings involving Petitioner. C.J. was asked how she could have had such knowledge of sexual activity as an eight year old in order to provide the details that she did to Dr. Rao, Ms. Restani, Dr. Alvarez, and in her testimony in the underlying criminal proceedings. In response, C.J. testified she came up with the details by watching cable television and walking in on her mother and Petitioner while they were having sex. At the hearing before Judge Ward, Respondent presented the live testimony of C.J.’s mother, who acknowledged she was a cocaine addict in March 1990. C.J.’s mother testified on direct examination that she recalled an incident in which she had returned home one night on March 5, 1990, and found C.J. lying in bed with her hands covering her front “private parts.” She testified that she could smell a “sexual scent” in the room and that she asked C.J. “what was wrong.” She testified C.J. did not indicate anything was wrong, but she was still suspicious something was wrong because of the sexual odor in the room. C.J.’s mother testified that due to this suspicion, she asked C.J. a second time on March 9, 1990, if “anyone had been messing with her.” According to C.J.’s mother, C.J. indicated this time that Petitioner “[h]ad been bothering her,” which meant that he had been sexually molesting her. C.J.’s mother testified on direct examination that when C.J. began telling her specific details of the abuse by Petitioner, she became irate and beat C.J. with a baseball bat. However, C.J.’s mother’s testimony as to when she began to beat C.J. with a baseball bat is inconsistent. C.J. and her mother acknowledged their relationship over the past several years has been good, and there is no current animosity between them. At the conclusion of the evidentiary hearing, Judge Ward orally announced her ruling that C.J.’s change in testimony is newly discovered evidence. In reaching this conclusion, Judge Ward specifically found C.J.’s testimony “reliable and credible.” Judge Ward commented she “had the opportunity to view her, and observe her during the testimony, and as well as consider any motive that she had for the recantation of her testimony.” On the other hand, Judge Ward specifically found the live testimony of C.J.’s mother to be “incredible.” In reaching this conclusion, Judge Ward commented that at the time of the events, she was by her own admission using drugs, and she had a poor recollection of the events, which is attributable to her drug use rather than to the passage of time. Judge Ward further stated: There were multiple lengthy pauses between the attorney’s questions and her answers where she seemed to be searching in her memory for answers. The Court observed that she seemed very hesitant and unsure of her own recollection of the events, and I further find that this is attributable to her extensive drug use, and that, and her intoxication on drugs at the time that this occurred. With regards to the beating, but with a baseball bat, although at some times she did acknowledge, did state that she beat her child with the baseball bat after she implicated the Defendant in the sexual assault, there were times that she said that she couldn’t recall and it could have been before she implicated her. And this is the most damaging testimony you could possibly have given the fact that there was no direct evidence otherwise implicating the Defendant as the person who sexually assaulted her. She did have six healed tears on her hymen which could have occurred at any time, and been caused by any other person. There was no DNA, blood evidence, semen, eyewitnesses, or a confession, so the only evidence that the State had, or the strongest evidence that the State had was the victim’s testimony, which was obviously obtained through a beating with a baseball bat by her mother when she was a very tiny child. The pictures of her are very sad at such a young age. There is no doubt that if a jury were to hear that the victim, hear from the victim that the Defendant was not the person that sexually abused her, and that she lied because her mother beat her with a baseball bat when she was eight years old, would have produced an, could have, would have produced an acquittal on retrial, and that the Defendant would probably be acquitted on retrial, so based on the foregoing I’m going to grant the motion for post-conviction relief. We need to schedule it for trial now. I think it has to be set in ninety days; isn’t that correct? Okay, I’ll answer my own question yes. Pet. Ex. 14, pp. 245-247. On April 2, 2015, a written order was entered vacating the finding of guilt, judgment, and sentence, and a hearing was scheduled for April 10, 2015, at which time a new trial date would be set. On April 10, 2015, the State announced a nolle prose of all criminal charges against Petitioner. On June 30, 2015, Petitioner timely filed a Petition to Establish Wrongful Incarceration in Case No. F90-009928. On July 31, 2015, Respondent filed a response contesting the petition. After the filing of the initial petition, a grand jury returned an indictment recharging Petitioner for the same crimes. C.J. was notified of the grand jury proceeding, but she did not appear or request a continuance. After the criminal case was re-filed, Respondent and Petitioner were unable to reach a settlement. On December 12, 2016, the second set of charges were nolle prossed. On January 25, 2017, Petitioner filed an amended petition. On March 17, 2017, pursuant to section 961.03(4)(a), Judge Ward issued an “Order Finding That Defendant Was a ‘Wrongfully Incarcerated Person’ and Is ‘Eligible for Compensation’ Pursuant to Section 961.03, Florida Statutes.” Judge Ward held that the petition was timely filed and that Petitioner met his burden of establishing, by a preponderance of the evidence, his “actual innocence” of the charges. Central to Judge Ward’s conclusion that C.J.’s recantation is reliable and that Petitioner met his burden of establishing his actual innocence by a preponderance of the evidence is that she had the opportunity to observe C.J. and her mother’s demeanor when they testified live at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. Judge Ward’s findings are largely based on credibility assessments of C.J. and her mother based on observations of their demeanor while testifying. In concluding that Petitioner established his “actual innocence” by a preponderance of the evidence, Judge Ward relied on the evidence presented at the April 2, 2015, evidentiary hearing on Petitioner’s motion for post-conviction relief. In the instant proceeding, however, Petitioner failed to meet his burden of establishing his actual innocence by clear and convincing evidence. Whether Petitioner is actually innocent turns on whether Petitioner presented clear and convincing evidence that C.J.’s recantation is reliable. The evidence presented in this case does not clearly and convincingly establish the reliability of C.J.’s recantation. To begin with, C.J. consistently provided details about sexual conduct perpetrated against her by Petitioner in her visits with Dr. Rao, Ms. Restani, and Dr. Alvarez, and in her prior deposition and trial testimony in the underlying criminal proceeding against Petitioner. C.J. gave details about how Petitioner would wake her up and take her to another room. She gave details about oral sex by Petitioner on herself and that she performed on Petitioner. She gave details about Petitioner using a lubricant on his penis. She gave details about how he would place his penis in her vagina and move up and down really fast. She said it hurt when he did so. Dr. Rao persuasively and credibly testified that the injuries to C.J.’s hymen were consistent with her history. C.J. consistently stated in 1990 and 1991 that her mother beat her with a baseball bat after she told her of the sexual abuse by Petitioner. Over 20 years later, C.J.’s story changed, and she stated that her mother beat her with a baseball bat before she told her of the sexual abuse by Petitioner. In her recantation affidavit, C.J. stated that after telling her mother that Petitioner touched her, the beating stopped. However, in the hearing before Judge Ward, C.J. testified that her mother continued to beat her with the baseball bat after she told her about the abuse for not telling her about the abuse sooner. From March 10, 1990, when C.J. was removed from her mother until she was 16 years old, C.J. had many opportunities to come forward and recant the allegation of abuse against Petitioner. During this time, there was no reason for C.J. to fear her mother because her mother was not in C.J.’s life. Subsequently, C.J. and her mother developed a good relationship. However, Petitioner waited almost 24 years to recant. C.J. recanted after developing a relationship with her half-brother, Andrew Taylor, Jr. When Andrew Taylor, Jr., turned 18 years old, he began a relationship with his father, Petitioner. Prior to recanting, C.J. regretted her half-brother did not get to spend quality time with Petitioner because Petitioner was in prison. C.J.’s development of a relationship with her half-brother and her desire that he have a strong relationship with Petitioner could be a motive for her recantation. C.J. did not appear before the grand jury, she did not request a continuance, and she was not called as a witness at either of the hearings in the instant matter. The undersigned lacked the opportunity to observe C.J.’s demeanor because she was not called to testify as a live witness. However, the undersigned had the opportunity to observe C.J.’s demeanor while testifying in her videotaped deposition in 1990, at which time she testified credibly and persuasively to facts demonstrating that Petitioner sexually abused her. Petitioner was called as a witness at the August 8, 2017, hearing, at which he was simply asked on direct examination if he ever molested C.J., to which he responded no. Petitioner’s testimony at the hearing was unpersuasive.
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Respondent was certified by the Commission on June 10, 1977, and was issued Law Enforcement Certificate Number 41580. The Administrative Complaint alleges that: (a) On or between January 1, 1973, and December 31, 1974, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Deborah Brice, a child under sixteen years of age, by fondling her breasts and kissing her neck; (b) On or between January l, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dorothy Spickard, a child under sixteen years of age, by putting her on his lap and tickling her near her vaginal area; (c) On or between January 1, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dawn Whitehead, a child under sixteen years of age, by digitally penetrating her vagina areas and placing her hands on his penis; and (d) On or between June 1, 1969, and December 31, 1971, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Susan Kleine, a child under sixteen years of age, by kissing her on the neck, French-kissing her, and forcing her on a bed and getting on top of her, simulating sexual intercourse. Debra Brice, Dorothy A. Spickard, Dawn Allison Steward (f/n/a Dawn Allison Whitehead), and Susan Kleine testified that Respondent touched them inappropriately during the middle 1970's while they were under the age of 18 years. Debra Brice, Dorothy Spickard, and Susan Kleine were around the age of 14 to 15 years at the time the inappropriate touching was alleged to have occurred. Dawn Steward was around the age of 8 to 9 years at the time the inappropriate touching was alleged to have occurred. Debra Brice, Dorothy Spickard, and Dawn Steward are nieces of Respondent's ex-wife, Carol, who was married to Respondent during the time that the alleged incidents were supposed to have occurred. Susan Kleine is a sister of Respondent's ex-wife, Carol. Respondent and Carol were married in 1966, and were divorced sometime around 1978-79. It was not until the latter part of 1993, approximately 20 years later, that Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine told anyone of this alleged inappropriate touching. Sometime around the latter part of 1993, Carol discussed this inappropriate touching with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Sometime around the latter part of 1993, this alleged inappropriate touching was discussed in the presence of Debra Brice or Dorothy Spickard or Dawn Steward or Susan Kleine during therapy sessions involving Carol's and Respondent's child. While Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine appeared to be relatively clear on the facts concerning the alleged inappropriate touching, they were not clear on all the facts surrounding the alleged incidents. There was no evidence presented to corroborate the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, or Susan Kleine. Respondent denies any inappropriate touching of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Respondent admits tickling and wrestling with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in a playful manner but denies touching any of them in an inappropriate manner, specifically in an inappropriate sexual manner. There is insufficient evidence to establish facts to show that Respondent touched Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in an inappropriate manner, sexually or otherwise, notwithstanding the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine to the contrary which I find lacks credibility due to the reasons set forth in Findings of Fact 5 through 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Administrative Complaint filed against the Respondent be dismissed. DONE AND ENTERED this 26th day of June, 1997, in Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Thomas M. Lindsey 21367 Anderson Road Brooksville, Florida 34601 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training 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 Respondent is currently certified by Petitioner as a corrections officer and holds certificate number 68-86-502-01, which was issued on March 14, 1986. At the time of the events in question, Respondent was employed as a correctional officer by the Orange County Sheriff's Office. On April 4, 1987, Sergeant Frank Fink of the Orlando Police Department was working undercover in plainclothes in Langford Park, which is located at 1800 East Central Boulevard in Orlando. Langford Park is a known gathering place for homosexuals. It is located in a residential neighborhood and near a school. Sgt. Fink's assignment was to work as part of a homosexual detail and arrest anyone who offered to commit a lewd act, which by Orlando City Ordinance 43-18 is defined as anything contrary to acceptable public standards. At approximately 6:00 p.m., while it was still daylight, Sgt. Fink observed Respondent near the restrooms. Ten to twenty minutes later, Sgt. Fink saw Respondent elsewhere in the park, talking to another man. Shortly thereafter, Sgt. Fink saw Respondent seated in a gazebo in a densely vegetated portion of the park. Sgt. Fink seated himself beside Respondent, about five feet away, and commented that it was a beautiful day and nice park. The ensuing conversation, which proceeded in a normal tone and volume so as to be clearly understood by both men, was innocuous up to the point at which Respondent asked Sgt. Fink what kind of people came to the park and Sgt. Fink answered, mostly gays. Then Respondent asked what these people did in the park, and Sgt. Fink answered, oral sex. Respondent asked if these people ever got caught, and Sgt. Fink replied, sometimes. Respondent asked where such acts took place, and Sgt. Fink told him, on the trails behind the bushes. Respondent then informed Sgt. Fink that Respondent went to a local pornographic newsstand and watched films of homosexual acts. He told Sgt. Fink that men performed oral sex on each other in booths at the newsstand. At this point, Respondent told Sgt. Fink that Respondent was thinking about performing sex with another man and that he would like to perform oral sex on Sgt. Fink. After confirming his understanding of Respondent's offer, Sgt. Fink asked if Respondent wanted to pay him money for the act, but Respondent declined. Respondent indicated that he did not want to get caught, so Sgt. Fink led him down a trail to a safe place. After leading him about 100 yards, Sgt. Fink took Respondent to police waiting in a clearing within the park where Respondent was arrested for lewd behavior.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of violating the requirement of good moral character and revoking his certificate as a corrections officer. DONE and RECOMMENDED this 8th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack J. Curcio, pro se 1931 Stanton Street Deltona, Florida 32738 Robert R. Dempsey Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this proceeding are whether the Petitioner has violated provisions of Florida Statutes relating to the certification of police officers as alleged in the Administrative Complaint, and, if so, what penalty should be imposed by the Commission.
Findings Of Fact The Respondent is certified with the Criminal Justice Standards and Training Commission as a law enforcement officer. He holds Certificate No. 02- 16422. From approximately March, 1976, until August, 1981, the Respondent was employed with the City of Orlando as a police officer. On or about August 11, 1981, the Respondent was on duty as a uniformed police officer during the midnight shift. He was riding in a patrol car with another officer. The two officers observed a pickup truck in a parking lot with a white male in the driver's seat and a black woman in the passenger's seat. The Respondent identified the woman as a "known prostitute." The officers drove into the parking lot to investigate. The woman jumped out of the truck. She had a gun in her possession. The two officers successfully apprehended her. In the meantime, the driver of the truck had wandered away. The other police officer left the area, looking for the man. It took the other officer approximately five minutes to apprehend the man, who was quite intoxicated. During this time, the Respondent was alone with the woman. She appeared intoxicated or drugged. She inferred that Respondent should release her, unzipped his pants, and grabbed his penis. Respondent wanted to make a case against her on this basis. He called out to his partner in an effort to get his attention to come witness the incident, but was unable to reach him. Respondent withdrew from the woman and came to the conclusion that he could not make a case against her for the incident because of the lack of an additional witness. Approximately a year before this incident, Respondent was working in uniform as an off-duty policeman at a lounge. He met the same woman involved in the later incident. After he finished his duties and changed clothes, he had a sexual encounter with her. The encounter was not an act of prostitution. On August 11, the Respondent arrested the woman for being a felon in possession of a firearm. The next morning, the woman complained that the Respondent had agreed to do something about the arrest if she performed oral sex on him. An investigator with the police department's Internal Affairs Division interviewed the woman. The investigator then interviewed the Respondent. At the initial interview, the Respondent denied ever having had a sexual liaison with the woman. Two days later, the Respondent contacted the investigator and said he remembered some additional facts. In a second interview, the Respondent admitted having had sex with the woman on the earlier occasion. He continued to deny having had sex with her on August 11, 1981. He conceded, however, that she may have touched him in the area of his genitals while pleading for him not to arrest her. Later on that same day, the Respondent again contacted the investigator and said that he had more to say. A third interview was conducted, and the Respondent admitted that the woman committed the act as set out in Paragraph 2 above. During this time, the Respondent was experiencing personal difficulties. His contradictory statements to the investigator were in part the result of anxieties about his job and his personal life. The State Attorney's Office in Orange County ultimately declined to prosecute the possession-of-a-firearm case against the woman on account of the potential embarrassment that the Respondent's testimony could have. The Respondent's employment with the police department of the City of Orlando was terminated in August, 1981. He has not been employed in the law enforcement field since that time.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint dated May 12, 2000, and filed March 11, 2003, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, St. Amand was a certified law enforcement officer employed as a detective by the North Miami Beach Police Department. St. Amand occupied a position of the highest trust as a member of the detective bureau. He abused that trust by engaging in repeated acts of lewd behavior in the workplace. The nature and quantity of the behavior was sufficient to provoke complaints to the Dade County State Attorney's Office which resulted in an investigation concerning sexual harassment and indecent exposure. In the course of that investigation, St. Amand compounded his offenses by lying consistently and repeatedly to investigators. Five witnesses, all of whom were entirely credible, testified in detail regarding incidents they had witnessed in which St.Amand masturbated, or simulated masturbation, at work. One such incident took place in the community patrol office. St. Amand's semen was collected from the carpet in that office. One of his former partners in the family violence unit said it was "second nature" to St. Amand to grope himself, simulate masturbation, and make vulgar comments. He did so in front of male as well as female colleagues. St. Amand falsely denied under oath that any of the incidents his colleagues testified to ever happened. Florida law requires, as a minimum qualification for its law enforcement officers, that they be of good moral character. Florida law further provides that law enforcement officers who lack good moral character, or who make false statements under oath, may be stripped of their license to serve in law enforcement. The public has every right to expect that those who serve and protect will do exactly that--not harass and embarrass colleagues and citizens who are conducting business in tax- supported buildings. St. Amand's conduct did substantial damage to his colleagues' morale, and to his department's reputation for professionalism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that St. Amand's law enforcement certificate be permanently revoked. DONE AND ENTERED this 16th day of June, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 16th day of June, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Fred St. Amand, Jr. 2429 Northwest 184 Terrace Pembroke Pines, Florida 33029 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 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether the Respondent, by committing the felony of armed trespass while employed as a deputy sheriff, failed to fulfill his duties and responsibilities as an employee of the Petitioner, and, if so, whether the termination of the Respondent's employment was consistent with applicable disciplinary policy.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a deputy sheriff. The Respondent had been employed for 12 to 13 years as a law enforcement officer prior to his employment with the Petitioner. He was employed by the Petitioner for more than six years prior to the termination at issue in this proceeding. In September 2009, two undercover law enforcement officers, one of whom was the Respondent, went from a public alleyway through a privacy fence and into the private backyard property of a Pinellas County citizen. The entry occurred at night. The alley and backyard area were unlit. The Respondent was dressed in shorts and a t-shirt and was armed with a gun. The officers had no search warrant authorizing their entry onto the private property. The Respondent's entry into the private backyard was an act of trespass. The commission of a trespass while armed constitutes a third degree felony. The Respondent did not report the trespass to any superior officer within the Petitioner's chain of command. The Respondent has asserted that he was merely following the other officer's lead on the night when the trespass occurred and did not think that he had acted improperly. During a deposition for an unrelated criminal case, the Respondent was questioned about whether he had observed another officer engage in a similar trespass. The Respondent resisted answering the question, sought legal advice from an assistant state attorney, and then declined to answer the question. Even after being questioned about the issue during the deposition, the Respondent still failed to report the incident to any superior officer within the chain of command. After a complaint of misconduct was filed against the Respondent, the Petitioner commenced an administrative investigation. During the investigation, the Respondent acknowledged the trespass, but attempted to minimize his participation in the incident and to assign responsibility for the trespass to the other law enforcement officer. Bob Gualtieri, the sheriff of Pinellas County, Florida, is responsible for operation of the Petitioner and is authorized to impose discipline on the Petitioner's employees who violate rules or regulations adopted by the Petitioner in accordance with a Civil Service Act. The Petitioner has adopted General Order 3-1 to establish a standard of conduct for the Petitioner's employees and has categorized misconduct into disciplinary levels based on the severity of a transgression. "Level 5" violations reflect serious misconduct. The Respondent's participation in the felony trespass and his failure to report the incident to his superiors constitute separate level 5 violations. The Respondent violated Rule 5.4, which requires that employees be aware of their assigned duties and responsibilities and take prompt and effective action in carrying them out. The Respondent violated Rule 5.5, which requires that employees observe and obey all laws and ordinances and report violations by written memorandum upon their first duty shift following a violation. The Petitioner has adopted General Order 10-2 to establish a point system to be followed by the Petitioner's Administrative Review Board for the imposition of discipline based on adopted guidelines. The Respondent has accumulated 75 disciplinary points, 60 of which are based on the trespass incident underlying this proceeding. Termination from employment is within the range of discipline established by the Petitioner's rules and procedures applicable to the facts of this case. The Respondent has asserted that the sheriff's exercise of discretion in terminating his employment was severe and unreasonable. There is no credible evidence to support the assertion. The basis for the Respondent's termination was the Respondent's commission of the felony of armed trespass and his failure to inform any superior officer within the chain of command of the incident. The sheriff's decision to terminate the Respondent from employment was clearly warranted. There is no evidence that the sheriff inappropriately applied the Petitioner's rules and procedures or that any similarly-situated employee has been subjected to lesser discipline by Sheriff Gualtieri for comparable conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Sheriff's Office enter a final order terminating the Respondent from employment. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of March, 2013. COPIES FURNISHED: Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Carole Sanzeri, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675
The Issue The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123. Respondent was employed by the City of Madison Police Department from December 2008 through July 2009. At the beginning of 2009, Respondent was 23 years old. Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old. Respondent knew that E.B.H. was under the age of 18. Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent and E.B.H. texted and called each for a one to two-week period. They never met in person. During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like. E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude. The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble. Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint. As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos. As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone. Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing. Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents. Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else. The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010. COPIES FURNISHED: Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ernest M. Page, IV, Esquire Post Office Box 167 Perry, Florida 32348 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent, Melvin Roberts, was born on July 14, 1967. He was certified by the Criminal Justice Standards and Training Commission on March 1, 1993, and was issued correctional certificate numbered 151525. Respondent has been employed as a certified correctional officer with the Florida Department of Corrections since January 29, 1993. On October 28, 1994, Officer Elise Dillard-Gonzalez of the Miami-Dade Police Department was working as part of an undercover prostitution sting at Southwest 8th Street and 69 Avenue. At approximately 11:10 p.m., Respondent, who was alone, pulled over to the curb and motioned to her to approach his vehicle. When she did, he requested a "fuck for $20." She signaled to the undercover officers across the street, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. On November 10, 1994, Officer Sonja Crespo of the City of Miami Police Department was working as part of an undercover prostitution sting at Biscayne Boulevard and Northeast 73rd Street in Miami. Respondent, who was alone, approached her and gestured at her by placing a finger on one hand through a circle made by the fingers on his other hand. When she went over to Respondent's vehicle, he offered her $20 for a "fuck." She signaled to other near-by police officers, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. Rather than going forward on the charges for the two arrests, the State Attorney's Office agreed to place Respondent in some type of pre-trial diversionary program. Respondent was suspended from his employment with the Florida Department of Corrections for 10 consecutive days beginning April 17, 1995, for failing to report his arrests to his employer within 3 days and for being arrested, conduct unbecoming a correctional officer. Other than the October and November 1994 arrests, Respondent has not been arrested. Other than the disciplinary action imposed in April 1995, Respondent has had no disciplinary action taken against him as a correctional officer for the State of Florida. The superintendent at the Dade Correctional Institution where Respondent is employed considers Respondent to be a good employee and would like to continue Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him, finding mitigating factors to be present, and suspending Respondent's certification as a correctional officer for 20 days. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 7th day of May, 1999. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, 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
