The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on her race in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner is an African-American female who was employed as an Adult Case Manager in Respondent’s Madison County Clinic from December 18, 2003 to October 11, 2004. Petitioner did not have an employment contract with the Respondent. As part of her job duties, Petitioner was required to prepare client progress notes for each service, contact or session with a client. In accordance with Respondent’s Outpatient & Rehabilitation Services Online Client Record Handbook, “an individualized PROGRESS NOTE is required for each service, contact, or session. The notes must be individualized; ‘Generic’ notes, ‘Xerox’ copies, or word processing duplicate notes are not permitted.” Respondent is a Medicaid provider. Medicaid is billed for services rendered by Respondent’s case managers based upon each case manager’s progress notes and how much time the case manager records he or she spent on client services. If case managers do not properly complete their case management reports or if they don’t properly calculate the time spent on services, Respondent has to repay Medicaid for funds improperly received. If the reports and/or times recorded appear fraudulent, Respondent could lose its Medicaid provider status. Jan Agner, Petitioner’s supervisor, testified that Petitioner received extensive training during her employment orientation regarding the proper preparation of case management progress notes. Ms. Agner also testified that as part of her training, Petitioner was provided with a copy of the Respondent’s Outpatient & Rehabilitation Services Online Client Record Handbook. On September 2, 2004, September 3, 2004, and September 14, 2004, Petitioner acknowledged that she completed a client progress note for one client and then "Xeroxed" that note for her remaining clients adding one or two sentences to each note. Petitioner billed from 20 minutes to 1 hour and 15 minutes for services provided to each client. While auditing files in the Madison County Clinic, Petitioner’s Supervisor, Jan Agner, reviewed Petitioner’s client progress notes and became concerned that the notes were an abuse of the Medicaid system and constituted fraud. Petitioner’s questionable billings were removed from the computer and were not submitted to Medicaid for payment. Jan Agner contacted Candy Landry, Respondent’s Human Resources Coordinator, to report her concerns about Petitioner’s excessive billings. Ms. Landry asked Ms. Agner to put her concerns in writing in the form of a memorandum to Dr. Michael McGee, the Clinical Program Director, and to furnish a copy to Human Resources for review. In an October 7, 2004, memorandum to Dr. McGee, Ms. Agner outlined her concerns regarding Petitioner’s case progress notes and stated that she believed the majority of Petitioner’s billings for the three dates in question constituted fraud. Ms. Agner recommended that Petitioner receive a written reprimand; that she rewrite the case management portion of the notes in question; that she be placed on conditional probation for three months; and that Ms. Agner take the responsibility of reviewing all of Petitioner’s progress notes. Respondent has a policy that all supervisors are to contact Human Resources prior to issuing a written reprimand or any type of disciplinary action so that the proposed disciplinary action may be discussed and all documentation reviewed. This policy helps to prevent discriminatory actions from occurring by individual supervisors. Candy Landry, together with John Convertino, Respondent’s Chief Administrative Officer, reviewed the information from Ms. Agner and submitted a written recommendation to Chris Gosen, the Chief Operations Officer, that Petitioner be terminated for falsification of records and inflation of her time. Mr. Gosen approved the recommendation for termination and prepared a letter to Petitioner stating that she was terminated from her position for falsification of records due to billing excessive amounts of time for minimal case management services provided. Respondent’s Personnel Manual provides that over- billing or falsification of records shall subject employees to reprimand or termination. Ms. Landry testified that Respondent takes Medicaid fraud very seriously and that in every case where falsification of records is proven, termination will be recommended. Petitioner testified that she believed that she had been discriminated against by Respondent based upon a white secretary’s statement referring to "these people" getting public assistance and then wanting help with lights, water, and gas. This secretary, Janice Croft, performed no supervisory role over Petitioner. Petitioner testified that she reported this incident to her supervisor, Jan Agner, and that the secretary immediately apologized for her inappropriate comments. Petitioner did not notify Human Resources of her concerns regarding the secretary’s comment. Petitioner’s only other proffered evidence of discrimination was that a white case manager, Catherine Cruse, had submitted a note with a copy of a client’s signature, but that she had not been terminated. Jan Agner and Candy Landry testified that on one isolated occasion in 2002, Catherine Cruce had a Client Service Plan (CSP) with a “Xeroxed” signature from a previous CSP. This was discovered when Ms. Agner performed an audit of files. An investigation was conducted and Ms. Cruce denied that she had submitted a false signature. Additionally, Ms. Cruce thereafter produced the form with her original signature which she had mistakenly put in a drawer at her desk. Because Respondent could not prove that Ms. Cruce had personally submitted a false signature, Ms. Cruce was placed on a one-week leave without pay. Unlike Catherine Cruce who denied copying a client’s signature on one isolated occasion, Petitioner acknowledged that she had submitted "Xeroxed" client progress notes on September 2, 3 and 14, 2004. Candy Landry testified that in 2004, prior to the date of Petitioner’s termination, two white employees, one male and one female, had been terminated for falsifying records. A third white employee was fired in 2005 for a similar offense. In 2004, there were 24 total employees in the Respondent’s Madison County Clinic, 11 of whom were African- American. Ms. Agner has hired three African American case managers in the Madison County Clinic since Petitioner’s termination on October 11, 2004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of August, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 3rd day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Millie Miller 1485 Southwest Lee Street Madison, Florida 32340 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in the case is whether the Petitioner's application for licensure as a real estate sales associate should be approved.
Findings Of Fact In August 2004, the Petitioner filed an application for licensure by the State of Florida as a real estate sales associate. In an application section titled "Background Information" question No. 1 asked in relevant part, "[h]ave you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere . . ." to which the Petitioner responded in the affirmative. The question directed an applicant responding in the affirmative to disclose the full details of the incident(s) by completion of "form 0050-1." The Petitioner filed the information related to her criminal history on the proper forms, and disclosed 26 instances wherein legal charges had been brought against her. The Petitioner also collected and submitted available records related to her criminal history. By Notice of Denial dated December 1, 2004, the Commission denied the Petitioner's application and specifically referenced the Petitioner's criminal history as follows: Issuing Worthless Document, 05/86 Driving While License Suspended, 07/86 Attempted Fraudulent Use of a Credit Card, 08/86 Driving While License Suspended and Improper Equipment, 09/86 Traffic Citation/No Driver's License, 10/86 Uttering a Forgery, 02/88 Forgery, 04/88 Driving While License Suspended-amended to No Valid License, 06/88 Worthless Check, 12/88 Driving While License Suspended, 03/21/89 Possession of Drug Paraphernalia, 03/25/89 12. Theft, 08/02/89 Possession of Cocaine, 08/25/89 Driving While License Suspended, 1990 Resisting Officer w/o Violence, 1991 Retail Theft, 1992 Obtaining Property w/ Worthless Check, 04/0993 [sic] Driver's License Restriction, 05/02/93 Obtain Property w/ Worthless Check, 11/18/93 Uttering Forged Bill, 02/26/94 21. Theft, 04/08/94 22. Theft, 01/07/95 Retail Theft, 07/14/96 Petit Theft and Driving w/o License, 1997 The Petitioner is currently 51 years old and has been employed by the Ron Jon Caribe Resort for about seven years. In her work, she deals with the public and handles funds. Her employer is aware of her criminal history. At the hearing, the Petitioner testified that prior to the criminal charges, she was a cosmetologist. In the early 80's, she began religious counseling with a priest, went through a divorce, and began to remember instances of abuse that occurred during her childhood. The Petitioner testified that the emotional turmoil related to recalling her abusive childhood led initially to drug use, and then to drug addiction. The Petitioner opined that her criminal record was primarily the result of drug addiction. Many of the Petitioner's theft convictions were related to obtaining funds for drugs. In fact, the 1997 charges were related to a relapse into drug use that occurred after the Petitioner had already completed a substance abuse program. The Petitioner further testified that while incarcerated in 1997, she underwent a spiritual conversion, began to take renewed responsibility for her actions, and is currently living a sober life. The evidence establishes that since 1997, the Petitioner has made consistent progress towards recovery. At the hearing, several of the Petitioner's friends and supporters testified on her behalf. They believe her to be honest and trustworthy. A minister who worked with the Petitioner during her incarceration testified that the Petitioner had undergone a "complete transformation" during the incarceration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 30th day of September, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2005. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 419 West Vine Street Kissimmee, Florida 34741 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy B. Hogan, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since December 12, 1986, certified by the Commission as a law enforcement officer. He holds certificate number 03-83- 002-07. At all times material to the instant case, Respondent was employed as a law enforcement officer with the Fort Lauderdale Police Department (hereinafter referred to as the "FTLPD"). In February of 1992, Respondent was the subject of a FTLPD Internal Affairs Division (hereinafter referred to as "Internal Affairs") investigation. As part of the investigation, Internal Affairs personnel devised a plan to have Respondent come into possession of a woman's handbag containing, among other things, crack cocaine to see what Respondent would do under the circumstances. The implementation of the plan began on the evening of February 20, 1992, when Internal Affairs Sergeant Diana Cipriani obtained a woman's clutch- type leather handbag (hereinafter referred to as the "Handbag"), which had a zipper closure, from FTLPD Sergeant Charles Drago of the Organized Crime Division's Street Narcotics Unit. Cipriani then proceeded to place the following items inside of the Handbag: three one-dollar bills; 96 cents in change; three condoms; cigarettes; a couple of business cards; some used tissues; and a capped, opaque film vial containing three or four "rocks" of crack cocaine that she had also obtained from Drago for purposes of this operation. 1/ After it was filled with these items, the Handbag was given to Victor Manocchio. Manocchio was Cipriani's boyfriend and had volunteered to participate in the operation. 2/ He had no connection with the FTLPD. He was, and still is, a captain with the Metro Dade Fire Department. The plan was for Manocchio to flag down Respondent while Respondent was on road patrol (Respondent's shift was scheduled to begin at midnight), tell Respondent that he had found the Handbag lying in the street, and then turn the Handbag over to Respondent. Taking the Handbag with him and wearing a "wire," Manocchio left the FTLPD's Organized Crime Division's headquarters at approximately 10:00 or 11:00 p.m. in an unmarked FTLPD vehicle that he was given by Internal Affairs to drive to the location of his hoped-for encounter with Respondent. It was not until approximately 4:40 a.m. the following morning, February 21, 1992, however, that Manocchio met up with Respondent. They crossed paths in the vicinity of North Dixie Highway and Northeast 15th Street in Fort Lauderdale, near a convenience store. While driving in his patrol car in the area, Respondent noticed Manocchio motioning to him. Respondent pulled up behind Manocchio's vehicle and then exited his patrol car, with clipboard in hand, to speak with Manocchio and find out what he wanted. Mannochio, who was holding the Handbag, told Respondent that he had come upon two females fighting in the street and that they had fled upon observing Manocchio's vehicle approach, but one of them, in her haste, had dropped the Handbag and not stopped to retrieve it. Manocchio then gave the Handbag to Respondent. Respondent made a cursory inspection of the contents of the Handbag before putting the unzippered Handbag in his patrol car. 3/ After obtaining additional information from Manocchio, Respondent returned to his patrol car and drove off. The early morning meeting between Respondent and Manocchio lasted no more than ten minutes and it was audiotaped and videotaped by Internal Affairs personnel who were conducting undercover surveillance from two vans that were parked nearby. 4/ No further surveillance of Respondent was conducted, however, after the meeting ended and Respondent and Manocchio went their separate ways. Shortly after departing the scene, Respondent radioed dispatch and requested an Offense/Incident Report number for the paperwork he needed to complete, pursuant to standard FTLPD procedure, to report and describe the "found property" that Manocchio had given him. Offense/Incident Report No. 92-23697 was assigned. Respondent jotted down the assigned number on a piece of paper. At around 7:00 a.m. on February 21, 1992, following the completion of his road patrol shift, Respondent returned, in his patrol car, to the police station parking lot. After parking his car, he exited the vehicle, taking with him the Handbag, and proceeded to the police station "write-up" room to complete the various forms and reports he needed to fill out as a result of what had transpired during his shift. There were no Evidence Property (Receipt) forms in the "write-up" room. Respondent therefore went down the hallway to another room to get one. He did not take the Handbag with him. Rather, he left it in the "write-up" room unattended. When he returned to the "write-up" room, Respondent closely examined the contents of the Handbag. He then completed his paperwork and, following standard FTLPD procedure, turned the Handbag and its contents over to FTLPD evidence room personnel, after which he left the police station and went home in his private vehicle. In the Offense/Incident Report form he filled out, Respondent wrote the following "narrative:" The reportee flagged this officer down to report the following. He states that as he pulled into the Majic Market he observed a W/F & B/F fighting in the street. They fled East on NE 1st Street but one of them apparently dropped a handbag. The reportee recovered it and turned it in to this officer. Inside the tan leather, zippered bag were 3 $1.00 bills, 3 condoms, & .96 in change. There was no I.D. A search of the area was negative for finding the owner. The purse & its contents were placed into evidence. Respondent also completed a Property Report form, and an Evidence Property (Receipt) form relating to this "found property." On the Property Report form, he described the "found property" as follows: Item #1- 1 Handbag tan leather zippered clutch type bag Item #2- 3-$1.00 bills .96 in change Item #3- 3 condoms Respondent similarly described the "found property" on the Evidence Property (Receipt) form as follows: Item #1- 1 purse tan leather bag Item #2- 3 condoms Item #3- $3.96 in bills & change None of the forms Respondent filled out made any mention of the cigarettes, business cards, tissues, or film vial with crack cocaine that Cipriani had placed in the Handbag the previous evening before the Handbag was given to Manocchio. At approximately 10:00 a.m. that same morning, several hours after Respondent had left the police station, Internal Affairs personnel went to the evidence room to ascertain whether Respondent had turned in the Handbag and its contents as "found property." They discovered that Respondent had turned in the Handbag, but upon emptying the contents of the Handbag they noticed that the film vial with the crack cocaine was missing. Internal Affairs personnel did not search Respondent's patrol car to make sure that the film vial had not fallen out of the unzippered Handbag at some time while the Handbag was in the car, nor did they engage in any other investigative activity designed to discover the whereabouts of the film vial. The FTLPD thereafter initiated disciplinary action against Respondent which led to his termination, as well as the filing of the instant Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of January, 1994. STUART M. LERNER 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 11th day of January, 1994.
The Issue Should Petitioner discipline Respondent for his alleged involvement with a drug transaction based upon Respondent’s failure to maintain good moral character?
Findings Of Fact Petitioner licensed Respondent as a corrections officer on September 18, 1987. He holds corrections certificate number 81237. Respondent was employed as a corrections officer with the Sumter Correctional Institution from December 3, 1993, through June 9, 1994. In August, 1993, Respondent was the subject of a law enforcement investigation in which the DEA was the lead investigating agency. The investigation also involved Florida law enforcement agencies. The principle law enforcement personnel responsible for the investigation were certified in Florida. Investigation took place in Bradford County, Florida. The arrangement involved in the investigation was one in which Angel Allen, a police officer with the University of Florida police department, together with a confidential informant, contacted Respondent for purposes of purchasing drugs. The initial contact between Officer Allen, the confidential informant and Respondent was made on August 10, 1993. They met at a convenience store in Starke, Florida. At that time the confidential informant, who was known to the Respondent, introduced Officer Allen who was using an assumed name. Respondent then instructed the confidential informant to follow him. The parties went to a residential location off Lawtey Road. Respondent was in his vehicle, Officer Allen and the confidential informant followed in the confidential informant’s vehicle. Respondent entered the residence and passed another person who was coming out of the residence. The other person said to Respondent “I don’t know where its at.” Respondent entered the residence and then came back out and got into the car driven by the confidential informant. He sat next to Officer Allen on the passenger side. Respondent told the driver to proceed to the end of the block, and make a left, and then another left, and stop where a subject was standing on the street. Respondent then rolled down the window and spoke to a man who was standing there. Respondent used several names in referring to the individual during the conversation that ensued. Respondent instructed that individual to go around to the drivers side. When the individual reached the drivers side the confidential informant asked him how much an “eight ball” was, that is a street term referring to a certain amount of powdered cocaine. The man replied “two.” This refers to $200. The confidential informant handed the man $200. In turn the man gave the confidential informant a small plastic bag containing 2.406 grams of cocaine hydrochloride total net. The drug transaction took place in Respondent’s presence. Once purchased the confidential informant showed the cocaine to Respondent and asked if the drug seller had done her right. Respondent replied “yes.” The parties then returned to what was believed to be Respondent’s residence and he exited the vehicle. On August 17, 1993, further contact was made between Officer Allen, the confidential informant and Respondent. Respondent was reached through his pager. He returned the call to Officer Allen and the confidential informant and instructed them to come by his house in Starke, Florida. The purpose of the contact with Respondent was to purchase additional cocaine. When Officer Allen and the confidential informant arrived at Respondent’s house he entered their vehicle and sat next to Officer Allen and directed the confidential informant to the same location where the cocaine had been purchased on August 10, 1993. When the parties arrived at that location there was a person on a bicycle. The bicyclist came to the drivers side and Officer Allen gave the bicyclist $200, in return for cocaine which the bicyclist handed to the confidential informant, who in turn handed it to Officer Allen. Again the transaction took place in full view of Respondent. During this transaction Respondent made some comment to the effect of getting together with Officer Allen and the confidential informant and partying with them and having a “blow-out.” Respondent said that he had been “staying away from the stuff” referring to the cocaine, but that he would like to get together with the confidential informant and Officer Allen and have a “blow-out” in a couple of weeks. The bicyclist was the same person who had sold the parties drugs on August 10, 1993. On August 17, 1993, Respondent referred to that individual as “Frank,” a name that he had used in referring to the drug seller on the previous occasion. Respondent on this occasion stated that “Frank is good guy.” Respondent said that “Frank” was an up front guy and that he would make it right if it wasn’t right, referring to the cocaine if it wasn’t the correct amount, that “Frank” would make it the right amount of cocaine. After the transaction, Officer Allen and the confidential informant drove Respondent to what was believed to be his residence. The item that was purchased from “Frank” on August 17, 1993, was cocaine hydrochloride, 1.848 grams total net. Following these events, Respondent voluntarily gave a statement to Michael F. Page, Regional Inspector Supervisor with the Florida Department of Corrections, in which Respondent admitted being involved in the drug transactions. The statement was taken through a taped interview. In this statement, Respondent acknowledged knowing the drug seller “Frank” and that “Frank” was a person who sold drugs in the neighborhood. Respondent also admitted that he knew the purpose of the visits to the neighborhood was for the confidential informant to obtain drugs and that he took the confidential informant to a place where drugs were dealt. Respondent’s comment’s during the interview in which he said that his reason for accompanying Officer Allen and the confidential informant in purchasing drugs was to protect the confidential informant given the nature of the neighborhood, does not excuse Respondent’s conduct.
Recommendation Upon consideration of the fact finds and the conclusions of law reached it is RECOMMENDED that a final order be entered which revokes Respondent’s correction certificate number 81237.DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 1st day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Simon L. Mitchell Route 3, Box 334 Starke, FL 32091 Simon L. Mitchell Post Office Box 63 Starke, FL 32091 A. Leon Lowry, II, Director Department of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issue is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS) pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, on the stipulations of the parties, and on the entire record of this proceeding, the following factual findings are made: Respondent is charged with managing, governing, and administering the FRS. The FRS is a public retirement system as defined by Florida law. The Duval County School Board (DCSB) employed Petitioner as a teacher at Ribault High School. As a teacher, Petitioner was subject to the Code of Ethics of the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.001. Petitioner also was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. Petitioner’s employment with the DCSB began on or about August 19, 1986. By reason of this employment, Petitioner was enrolled in the FRS as a Regular Class member. On or about December 7, 2001, Petitioner was arrested in connection with Officer David Coarsey's sworn information, which provided as follows in relevant part: On 12-07-01, Lt. Remolde called the Jacksonville Sheriff’s Office Sex Crimes Office and stated that a student at Ribault High School had reported to the principal, Mr. Ken Brockington, that she had penile/vaginal intercourse with this suspect. On 12-07-01, I arrived at Ribault High School and interviewed the victim. She stated that approximately three weeks ago, she went to the suspect’s classroom at his request after school hours. The suspect asked the victim to help him with some of his work. While she was there, the suspect put his arm around the victim and began rubbing her waist. The suspect then began talking to the victim about sex. The suspect then put his hand up the victim’s skirt and inserted his finger in her vagina. The suspect also pulled the victim’s shirt and bra down and “sucked” on her breast. The victim said that she did not attempt to stop the suspect. The victim then told the suspect, “I don't think we should do this”, and she walked out of the room. Approximately one week later, the suspect asked the victim to come back to his classroom after school. When the victim arrived at the room, the suspect began “rubbing” on the victim’s body. The victim stated that the suspect retrieved a condom from a “grey file cabinet” and then sat down in a chair. The suspect pulled his penis out and the victim put the condom on his penis. The victim pulled her shorts down and sat on the suspect’s lap, at which time the suspect put his penis in the victim’s vagina. After having penile/vaginal intercourse with the suspect for a short period of time, the victim stood up and the suspect masturbated until he ejaculated. On 12-07-01, the victim met the suspect in the “Book Room”. The suspect pulled the victim’s shirt and bra down and “sucked” on her breast. The suspect then pulled his penis out of his pants and asked the victim to masturbate him. The victim masturbated the suspect until he ejaculated. The victim wiped the suspect’s semen off of her hands with a paper towel and threw it in the trash can in the “Book Room”. The victim then left the room and reported the incident to a substitute teacher, Mr. Carlos Bowers (12-25- 59, 3701 Winton Dr., B/M), who in turn, reported it to the principal, Mr. Brockington. The victim stated to me that all of the sexual encounters with the suspect were consensual. I retrieved the trash bag that contained the above mentioned paper towel from the “Book Room” and put it in the JSO Property Room. The suspect was transported to the JSO Sex Crimes Office by Officer D.W. Holsey #6044 and I transported the victim to the Sex Crimes Office. I contacted the victim’s mother and asked her to come to the JSO Sex Crimes Office. When she arrived, she transported the victim to the Child Crisis Center for a medical exam (swabs of the victim’s breasts). I advised the suspect of his constitutional rights and asked him to sign the rights form. The suspect signed the form and agreed to speak to me and Det. Romano #7527 about the allegations. The suspect admitted to having penile/vaginal intercourse with victim one time, “sucking” on the victim’s breast on two different occasions, and rubbing on her vagina once. The suspect stated that all of the sexual encounters happened at the school. The suspect stated, “It was a huge mistake, my life is fucked”. The suspect gave a written statement in regards to having penile/vaginal intercourse with the victim. The suspect was arrested and transported to the PTDF. The information reported in the sworn information truly and accurately recounts the events that occurred and to which Petitioner admitted. The arrest and booking report is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. Petitioner resigned his employment with the DCSB on or about December 27, 2001, effective on or about January 15, 2002. By reason of his employment with DCSB, Petitioner earned approximately 15.80 years of service credit in the FRS. On or about February 14, 2002, Petitioner was charged, by amended information, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in case number 2002-599-CFA, with (a) one count of sexual battery, a second-degree felony, in violation of Section 794.011(8)(b), Florida Statutes; and (b) one count of lewd or lascivious molestation, a second-degree felony, in violation of Section 800.04(5)(c)2., Florida Statutes. The amended information provided in relevant part: HARRY.L. SHORSTEIN, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that ARTHUR JOHN MARSLAND, JR, on or between the 1st day of November, 2001 and the 7th day of December, 2001, in the County of Duval and the State of Florida, did, while in a position of familial or custodial authority, engage in an act which constitutes Sexual Battery with * * * a person 12 years of age or older, but less than 18 years of age, by placing his penis in or upon the vagina of * * * contrary to the provisions of Section 794.011(8)(b), Florida Statutes. SECOND COUNT And for the second count of this information, your informant further charges that ARTHUR JOHN MARSLAND, JR., a person 18 years of age or older, on or between the 1st day of November, 2001 and the 7th day. Of December, 2001, in the County of Duval and the State of Florida, did in a lewd or lascivious manner force or entice * * * a child l2 years of age or older, but less than 16 years of age, to touch the genital area or clothing covering the genital area of Defendant, contrary to the provisions of Section 800.04(5)(c)2, Florida Statutes. The amended information is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. The victim of the alleged crimes was a student at the school where Petitioner taught. The alleged crimes took place in Petitioner's classroom or in the book room at the school where Petitioner taught. On or about April 8, 2002, Petitioner entered a plea of guilty to the second count of the amended information. Petitioner pled guilty because he was in fact guilty. Petitioner made the plea freely and voluntarily. On or about April 29, 2002, judgment was entered on Petitioner’s guilty plea. He was adjudicated guilty. The judgment and corrected order of sex offender probation are filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. During the hearing, Petitioner admitted that, but for his job position as a teacher, he “probably [would] not” have had an opportunity to have sexual relations with a student in the school’s classroom or book room. Petitioner also admitted that having sexual relations with one of his students was “obviously not” one of his duties and responsibilities as a teacher. Petitioner wrote three letters of apology in connection with the matter. He apologized in writing to the victim, to his spouse, and the DCSB. On or about September 27, 2002, Charlie Crist, as Commissioner of Education, filed an Administrative Complaint, before the Education Practices Commission of the State of Florida, in case number 02-0681-RT. The complaint sought disciplinary action against Petitioner’s educator’s certificate. The Administrative Complaint charged Petitioner in part with the following statutory and rule violations: STATUTORY VIOLATIONS COUNT 1: The allegations of misconduct set forth herein are in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation. COUNT 3: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. COUNT 4: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education. COUNT 5: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(j), Florida Statutes, in that Respondent has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate. COUNT 6: Section 231.2615(2), Florida Statutes, provides that the plea of guilty in any court or a decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate. RULE VIOLATIONS COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(2), Florida Administrative Code, in that Respondent has failed to have his primary professional concern always be for the student and for the development of the student’s potential and has failed to seek to exercise the best judgment and integrity. COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(3), Florida Administrative Code, in the Respondent has failed to be aware of the importance of maintaining the respect and confidence of his colleagues, of students, of parents, and of other members of the community and that Respondent has failed to achieve and sustain the highest degree of ethical conduct. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical safety. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 11: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code, in that Respondent has exploited a relationship with a student for personal gain or advantage. The Administrative Complaint is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. In consideration of the Administrative Complaint, the Education Practices Commission entered a Final Order permanently revoking Petitioner’s educator’s certificate. The Final Order is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. On or about October 20, 2003, Petitioner applied for early service retirement. Petitioner’s effective date of retirement was established as November 1, 2003. By certified letter dated May 2, 2008, Respondent notified Petitioner of the intended action to forfeit his FRS rights and benefits as a result of his guilty plea. The Division suspended payment of Petitioner’s monthly retirement benefits in May 2008. Petitioner had received approximately $41,309.56 in FRS retirement benefits from November 2003 through April 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 15th day of December, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Arthur J. Marsland, Jr. 1856 B Hereford Road Middleburg, Florida 32068-3104 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee,, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 02-29286. At all times pertinent hereto, Respondent was a certified law enforcement officer. The Respondent was employed as a police officer by the City of Miami Police Department from the time he went into the academy in 1981 through 1988. At the time of the formal hearing, Respondent was employed as a reserve police officer with the City of Virginia Gardens, a small municipality located in Dade County, Florida. On May 31, 1985, a drug rip-off occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug rip-off occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug rip-off occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Menocal did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Rudolfo Arias and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and were, at the time of the formal hearing, incarcerated in the federal prison system and had been placed in the Federal Witness Protection Program. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for substantial benefits to him. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had implicated. Mr. Pedrera's refusal to testify was in spite of a plea agreement similar to that of Mr. Arias. Mr. Arias was an officer with the City of Miami Police Department in 1985 and he knew Respondent as a fellow officer and as a friend. The gravamen of the complaint brought against Respondent is based on accusations made by Mr. Arias These accusations are buttressed by the hearsay testimony of Mr. Pedrera, but of no other testimony or evidence. The following is Mr. Arias's version of the pertinent events of July 12, 1985. According to Mr. Arias, he had gone to Mr. Pedrera's house to pick up Mr. Pedrera as part of their planned participation in the Tamiami Marina drug rip-off. Mr. Arias received a call from Respondent requesting him to come by Respondent's house to discuss a matter of importance. Mr. Arias and Mr. Pedrera went to Respondent's house before they went to the meeting place for the Tamiami Marina drug rip-off. When they arrived at Respondent's house, another person was present in the house, but the identity of this person was unknown to Arias or Pedrera. Mr. Arias contends that he and Pedrera were invited into Respondent's bedroom and shown a package shaped like a brick and wrapped in plastic which Respondent represented to be a kilo of cocaine. Neither Respondent, Mr. Arias, or Mr. Pedrera opened the package or attempted to test or weigh its contents. Mr. Arias contends that Respondent asked for Mr. Arias' assistance in selling the cocaine. Mr. Arias contends that Respondent wanted $25,000 for the sale, but that Respondent would give him the difference between the sales price and $25,000. Mr. Arias testified that when he told Respondent he would be unable to help sell the cocaine, Respondent told him that Oswaldo Cuello and Jose Benitez were coming to his house to discuss selling the cocaine. Mr. Cuello was a City of Miami police officer and Mr. Benitez was a drug dealer. Mr. Arias testified that after Cuello and Benitez arrived, he told them and the Respondent that he and other police officers were about to engage in the Tamiami Marina drug rip-off. Mr. Arias contends that Respondent wanted to participate in the drug rip-off, but that the leader of the expedition did not permit Respondent's participation. Mr. Arias contends that he and Pedrera then left to meet with the other participants in the drug rip-off. Respondent denies the accusations made against him by Mr. Arias and by Mr. Pedrera and contends that neither man was present at his residence on July 12, 1985. Little weight is given to Mr. Pedrera's hearsay testimony in light of his refusal to testify. Even if Mr. Pedrera's hearsay testimony was considered as buttressing that of Mr. Arias, the circumstances under which their stories were first given and the questionable credibility of Mr. Arias and Mr. Pedrera 1/ render their testimony an insufficient basis upon which it can be concluded that the factual allegations of the Administrative Complaint have been established by clear and convincing evidence. 2/ The denial of these accusations by Respondent is found to be credible based, in part, on his demeanor. In addition, the undersigned has considered that Respondent has never been prosecuted criminally, there was no evidence that his credibility has been called into question, and he was employed as a reserve police officer by the City of Virginia Gardens after a thorough background check. His performance as a reserve police officer by the City of Virginia Gardens has been above suspicion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Ignacio F. Menocal. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. CLAUDE B. ARRINGTON 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 3rd day of July, 1991.
