The Issue The issue in this case is whether Petitioner lacks good moral character in violation of Section 539.001(4)(a)1., Florida Statutes (Supp. 1996). 1/
Findings Of Fact Petitioner and her husband own and operate Seminole Antiques and Pawn ("Seminole Antiques") at 6115 Seminole Boulevard in Seminole, Florida. The business of Seminole Antiques includes pawnbroking. Petitioner first engaged in the business of pawnbroking in 1990. On November 28, 1995, officers from the Pinellas County Sheriff's Office (the "Sheriff's Office") arrested Petitioner on charges of dealing in stolen property and failing to maintain adequate records. On March 4, 1995, Petitioner entered a plea of nolo contendere to both charges. The court accepted Petitioner's plea, withheld adjudication of guilt, assessed costs of $144, and placed Petitioner on probation for two years. On March 14, 1997, the court entered an order terminating Petitioner's probation. Registration And License Prior to October 1, 1996, pawnbrokers had been required by former Chapter 538, Part I, Florida Statutes (1995). 2/ to register with the Department of Revenue ("DOR") as secondhand dealers. From 1990 through 1996, Petitioner was continuously registered with DOR as a secondhand dealer. In relevant part, former Section 538.09(4) provided: . . . registration may be denied . . . or any registration granted may be revoked, restricted, or suspended . . . if the applicant or registrant: (f) Has, within the preceding 5-year period, been convicted of, or has entered a plea of guilty or nolo contendere to, a crime . . . which relates to registration as a secondhand dealer or which involves . . . dealing in stolen property. . . . The registration provisions in former Section 538.09 did not include a requirement that a pawnbroker be of good moral character. Effective October 1, 1996, Section 539.001 transferred responsibility for licensing and regulating pawnbrokers from DOR to Respondent and prescribed license eligibility requirements. 3/ The license eligibility requirements in Section 539.001 include a requirement that an applicant be of good moral character. On October 1, 1996, the eligibility requirements in Section 539.001 did not prohibit a plea of nolo contendere to a criminal charge of dealing in stolen property within a five year period. However, Sections 539.001(4)(a)3. and 4. did prohibit a conviction in the last 10 years of any felony or any other crime that directly relates to the duties and responsibilities of a pawnbroker ( a "related crime"). In 1997, the legislature amended Sections 539.001(4)(a) and 4. to prohibit a plea of nolo contendere to a felony or related crime. The amendments took effect on June 3, 1997, approximately 36 days after the hearing in this case. As amended, Section 539.001 provides inter alia: (4) ELIGIBILITY FOR LICENSE-- (a) To be eligible for a pawnbroker's license, an applicant must: 1. Be of good moral character; Not have been convicted of, entered a plea of . . . nolo contendere to, or had an adjudication withheld for a felony within the last 10 years . . . . Not have been convicted of, entered a plea of nolo contendere to, or had adjudication withheld for a crime that involves dealing in stolen property . . . within the last 10 years. * * * (6) SUSPENSION, REVOCATION, AND SURRENDER OF LICENSE . . . (a) The agency may, after notice and a hearing, suspend or revoke any license upon a finding that: The licensee . . . has violated this section . . . . A condition exists that, had it existed when the original license was issued, would have justified the agency's refusal to issue a license. . . . (emphasis supplied) The underlined provisions became effective June 3, 1997. Pawnbrokers already in business had six months from the date Section 539.001 became effective to comply with the "registration . . . provisions" of Section 539.001. 4/ Section 539.001(21) provides, in relevant part: (21) TRANSITION PERIOD FOR LICENSING--Each pawnbroker operating a pawnshop in business of the effective date of this section shall have 6 months from the effective date of this section to comply with the registration . . . provisions before the agency may initiate any administrative . . . action. (emphasis supplied) Section 539.001 became effective on October 1, 1996. Petitioner, had until April 1, 1997, to comply with the registration provisions in Section 539.001. Prior to April 1, 1997, Respondent was statutorily prohibited from initiating any administrative action against Petitioner. On October 8, 1996, Petitioner applied for a pawnbroker license. On December 4, 1996, Respondent initiated administrative action by denying the application. Notice In the letter of denial dated December 4, 1996, Respondent stated several grounds for denying Petitioner's application. In relevant part, the letter stated: Section 539.001(4) . . . provides that to be eligible for a pawnbroker's license, an applicant must be of good moral character and must not have been convicted of a felony within the last 10 years . . . that directly relates to the duties and responsibilities of a pawnbroker. Our background investigation has revealed that you were found guilty of or pleaded nolo contendere to dealing in stolen property and failure to maintain records, case number CRC9519648CFANOB in 1996 (sic). Based upon these findings, your application for a pawnbroker license is hereby denied for failure to meet the eligibility requirements of s. 539.001(4) . . . . (emphasis supplied) Consistent with Section 539.001(4), Respondent's letter of denial listed as separate and distinct requirements the requirement for good moral character and the requirement of no felony conviction within the last 10 years. However, Respondent's letter of denial deviated from the statute that was in effect at the time, by expanding the definition of a conviction to include a plea of nolo contendere. Petitioner timely requested an informal hearing with Respondent. Respondent conducted the informal hearing by telephone conference. During the telephone conference, Petitioner testified that she was not guilty of dealing in stolen property. She testified that law enforcement officers, posing as consumers, had tried, unsuccessfully, to get her husband to purchase a watch. The transaction was not completed, and Petitioner was not present at the time. Nevertheless, Petitioner was charged with dealing in stolen property and failure to maintain records. Petitioner further testified that she chose to enter a plea of nolo contendere in order to quickly resolve the issue. Respondent disregarded Petitioner's testimony. On January 13, 1997, Respondent issued a letter overruling Petitioner's objections and denying Petitioner's application. Respondent based its administrative action on the ground that Petitioner was not of good moral character. Respondent did not make an independent determination that Petitioner was guilty of dealing in stolen property. Respondent determined that Petitioner lacked good moral character solely on the basis of the criminal charge and plea of nolo contendere. In relevant part, Respondent's letter of January 13, 1997, stated: The facts set forth in the . . . denial letter dated December 4, 1996, are undisputed. As part of the . . . review of your application, a criminal background check . . . by the Florida Department of Law Enforcement . . . revealed that you pled nolo contendere to dealing in stolen property and failure to maintain records. Adjudication was withheld. During the proceeding, you stated that law enforcement officers, posing as consumers, had tried, unsuccessfully, to get your husband to purchase a watch. Although according to your testimony the transaction was not completed and your were not present at the time, you were charged. Subsequently, you chose to enter a plea in order to quickly resolve the issue. . . . Pursuant to Section 539.001(4) to be eligible for a pawnbroker license the applicant must be of good moral character. Based upon your criminal arrest and plea discussed herein, you fail to meet the eligibility requirements set forth in the Florida Pawnbroking Act. Therefore, your objections to the denial of your application for a license are hereby overruled. (emphasis supplied) Petitioner retained counsel. On February 5, 1997, Petitioner's counsel sent a letter to Respondent requesting a formal hearing. In relevant part, the letter stated: . . . my client . . . received a letter indicating that she had been turned down for her license because of a criminal matter where she had been charged with dealing in stolen property and received a withhold of adjudication and probation. It is my understanding that her probation is now complete. . . . Mrs. Garafolo received a letter from Geoffrey G. Luckemann informing her that she was not eligible for a pawn broker's license because she was not of good moral character. . . . I . . . believe that the ends of justice would be honestly met by allowing . . . a Formal Hearing. . . . (emphasis supplied) On February 24, 1997, Respondent referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the administrative hearing. From February 24 through April 28, 1997, Petitioner's counsel did not file a request for discovery. On April 11, 1997, Respondent voluntarily served Petitioner's counsel with a copy of its administrative file. The administrative file contained numerous exhibits, including the exhibits Respondent submitted for admission in evidence at the administrative hearing. On April 15, 1997, the parties entered into a Prehearing Stipulation that included a list of Respondent's witnesses. The only witnesses listed by Respondent were the two undercover investigators Respondent called at the hearing. The Prehearing Stipulation stated that the issue for determination at the administrative hearing was whether Petitioner lacked good moral character. The parties did not stipulate that Respondent was limited to evidence of Petitioner's ". . . criminal arrest and plea . . .". In relevant part, the Prehearing Stipulation stated: . . . the application for a pawnbroker license was denied by respondent on the basis petitioner did not have good moral character. * * * The issue of fact to be determined is the good moral character or lack thereof by Nella Garafolo. At the administrative hearing, Respondent stated, for the first time, that it intended to prove Petitioner's lack of good moral character by evidence other than evidence of her ". . . criminal arrest and plea . . .". Respondent sought to prove that Petitioner actually dealt in stolen property and failed to keep adequate records. Petitioner's counsel objected to the admissibility of any evidence other than the ". . . criminal arrest and plea . . ." and moved to suppress any other evidence. Petitioner's counsel stated numerous grounds for the objection and motion, including due process requirements for adequate notice. The objections by Petitioner's counsel were overruled, and the motion was denied. Petitioner's counsel had adequate notice of the nature and scope of evidence Respondent intended to present at the administrative hearing. Even if Respondent had been required to file an administrative complaint in this case, due process would not require the complaint to satisfy the technical niceties of a legal pleading. 5/ Due process requires a specific accusation in the charging document or a procedure for disclosure, but not both. 6/ Respondent's letters of denial specifically charged that Petitioner lacked good moral character. Petitioner's counsel had adequate time from January 13, 1997, through April 28, 1997, to seek disclosure of the nature and scope of the evidence Respondent intended to adduce at the hearing. Petitioner's counsel declined to avail himself of the benefit of any procedure for disclosure. Petitioner's counsel had notice that Respondent intended to call the undercover investigating officers as witnesses in the administrative hearing. Neither Petitioner's arrest nor her plea were disputed issues of fact. The testimony of the undercover investigators was unnecessary to prove the criminal arrest and plea. It was reasonable to conclude that the undercover investigators were going to testify to facts other than Petitioner's ". . . criminal arrest and plea . . .". The notice to Petitioner's counsel was timely. On April 11, 1997, Respondent served Petitioner's counsel with a Notice of Filing Discovery. The notice listed the two undercover investigators as Respondent's only witnesses. On April 15, 1997, Petitioner's counsel signed the Prehearing Stipulation with a list of Respondent's witnesses attached as Exhibit 1. The Prehearing Stipulation identified the undercover investigators as Respondent's only witnesses. Petitioner's counsel had approximately 17 days from April 11, 1997, until the hearing on April 28, 1997, to inquire into the scope of the witnesses' testimony and to either prepare his case accordingly or to request a continuance to allow him time to do so. Petitioner's counsel chose not to avail himself of that opportunity prior to the hearing. There was no material error in procedure that impaired the correctness of Respondent's action. Respondent followed prescribed procedure. 7/ Good Moral Character In support of the allegation that Petitioner lacked good moral character, Respondent submitted evidence of an investigation and arrest that took place in November, 1995. On November 7, 1995, two undercover investigators for the Sheriff's Office began an investigation of Seminole Antiques. They were supported by four more officers at remote locations who monitored the conversations of the two undercover investigators. One or both of the undercover investigators visited Seminole Antiques on November 7, 14, 17, 20, 22, and 28. The investigation concluded on November 28, 1995, when Sheriff's deputies arrested Petitioner and her husband. The evidence submitted by Respondent consisted of the testimony of two undercover investigators, their arrest reports, tapes of visits they made to Seminole Antiques on November 14 and 17, 1995, transcripts of those two tapes, and transcripts of the tapes of the other visits. The evidence also included other miscellaneous documents. The tapes and transcripts purport to evidence conversations between the investigators, Petitioner's husband, and Petitioner. The two tapes submitted by Respondent are copies of the original tapes made by Sheriff's office personnel who monitored the conversations of the undercover investigators from outside Seminole Antiques. The original tapes were destroyed by the Sheriff's Office in accordance with department policy for cases in which a nolo contendere plea is entered. One of the undercover investigators made copies of the original tapes for November 14 and 17, 1997. Both copies are in evidence in this proceeding, without objection. Transcripts exist for the original tapes for each of the six visits that the undercover investigators made to Seminole Antiques. None of the transcripts are verbatim transcriptions. Each transcript is a summary prepared by one or the other of the two undercover investigators. Each summary contains only that portion of the recorded conversations which, in the opinion of the author of the transcript, are inculpatory. 8/ Respondent did not provide Petitioner with the notice of intent to use summaries that is required in Section 90.956. Similarly, Respondent did not make available to Petitioner the data from which the summaries were prepared because the data had been destroyed by the Sheriff's Office. The undercover investigators did not conduct business transactions every time they visited Seminole Antiques. On each occasion that the undercover investigators did conduct business, they used stolen property that the Sheriff's Office had recovered, inventoried in its log books, and stored. For the initial transaction conducted on November 7, 1995, the undercover investigators used two rings. One ring was a 14 karat gold ring with an onyx stone. The investigators placed a wholesale value of approximately $30 on the ring. The other ring was a gold ring with four diamond chips. The investigators placed a wholesale value of $35 on the second ring. On November 7, 1995, the undercover investigators pawned the two rings to Petitioner for $30. 9/ Petitioner completed the required paperwork evidencing the transaction. One of the undercover investigators returned to Seminole Antiques on November 14, 1995. He carried a bag containing two gold rings, two gold bracelets, and a gold necklace. One ring was a 10 karat gold ring with one sapphire stone flanked by two small diamond chips. The undercover investigator estimated its retail value at $40. The other ring was a 14 karat gold ring. The undercover investigator estimated its retail value at $39. One bracelet was a seven inch, 14 karat, bracelet. The undercover investigator estimated its retail value at $27. The other bracelet was also a seven inch, 14 karat, bracelet. The investigator estimated its retail value at $54. The necklace was an 18 inch, 14 karat, necklace. The undercover investigator estimated its retail value at $108. When the undercover investigator presented the bag of items to Petitioner, she and her husband were standing behind the counter at Seminole Antiques. Petitioner opened the bag and appraised the items inside while the undercover investigator conducted simultaneous conversations with Petitioner and her husband. Petitioner did not agree with the value placed on the goods by the undercover investigator. Petitioner gave the undercover investigator $30 for all of the items. She completed the required forms. The investigator terminated the transaction and returned to the Sheriff's Office. The same undercover investigator returned to Seminole Antiques on November 17, 1995. He did not conduct a transaction. He described to Petitioner and her husband a fictitious transaction on the previous day in which the investigator said he sold a gold Rolex watch to a competing pawn shop for $600. Petitioner was upset and told the investigator she would have given him more money. The investigator stated that Seminole Antiques was closed and that he needed the money. On November 20, 1995, both investigators returned to Seminole Antiques with unopened video cassettes. The investigators placed an aggregate value on the cassettes of $340. The investigators conducted a transaction with Petitioner's husband and agreed to take $60 for the cassettes. Petitioner paid the investigators $60 and completed the required forms. The investigators returned to the Sheriff's Office. On November 22, 1995, the two undercover investigators returned to Seminole Antiques with a video cassette recorder and remote control. They valued the two items at $149. The investigators conducted a transaction with Petitioner's husband and agreed to $55 for both items. Petitioner paid the investigators $55 and added the VCR to the pawn ticket for the previous transaction. On November 28, 1995, the two undercover investigators returned to Seminole Antiques with two Rolex watches. One watch was a stainless and gold watch. The other was an 18 karat gold watch with a 14 karat gold band. The undercover investigators valued each watch, respectively, at $2,995 and $6,995. The investigators first offered to sell the watches to Petitioner for $300 each. The investigators conducted the balance of the transaction with Petitioner's husband. The investigators agreed to accept $600 for the watches. Law enforcement officers from the Sheriff's Office arrested Petitioner and her husband. They took Petitioner and her husband to the Sheriff's Office and questioned them. Petitioner stated that she did not know any of the items had been stolen. She said that she was going to do the paper work on the watches and then resell them in the store. Petitioner did not have actual knowledge that the items she purchased were stolen. The investigators never represented to Petitioner that the items were stolen. As one of the investigators explained during his testimony: . . . at some time . . . it has to be represented as stolen. And that's hard to do sometimes because a lot of stores and pawn shops are fully aware of the law, and once you say something is stolen, they'll throw you right on out. * * * I did not say stolen. Transcript ("TR") at 40, 68. Respondent failed to show that Petitioner should have known that the items were stolen. Much of the evidence submitted by Respondent consisted of opinion testimony by the undercover investigators and hearsay statements by Petitioner's husband. The investigators opined that Petitioner paid them amounts far below the fair market value of the property. When asked how he determined the fair market value for each item, one investigator testified: . . . we've been taught by jewelers how to appraise and pawn brokers, and we give, at the Sheriff's Office, an incredibly low retail value. Wholesale and retail very low so that this way there's never no error. TR at 41. The investigators are not qualified experts in appraising property as diverse as jewelry, video equipment, VCRs, and watches. Respondent offered evidence that the investigators were dressed to portray someone who, in the opinion of the investigators, Petitioner should have known was of bad character. When questioned on this issue, one investigator testified: I had a goatee. I would wear a hat that I've got that's a very scrubby hat. I've got several of them that are scrubby. Holes in my pants. . . . I cut my grass. I don't shower. I get real sweaty. You can see the sweat stain on my shirt, and I walk in looking crummy. Pretty crummy. . . [t]o portray someone of bad character. TR at 42. Respondent offered evidence that the investigators conducted themselves in a manner which, in the opinion of the investigators, Petitioner should have known was typical of bad guys. When questioned on this issue, one investigator testified: I pulled the second [ring out of my pocket], which is typical of bad guys because they want to see how much money they can get for an item. TR at 47. The transactions conducted with Petitioner on November 7 and 14, 1997, do not show that Petitioner should have known she was dealing in stolen property. The investigators did not conduct a transaction on November 17. The transactions of November 20, 22, and 28, 1997, were conducted primarily with Petitioner's husband. Respondent relied on hearsay statements allegedly made by Petitioner's husband in the same room with Petitioner. Those statements are not competent and substantial evidence that Petitioner should have known she was dealing in stolen property. Petitioner maintained adequate records. The investigator who was at Seminole Antiques on each occasion originally testified that Petitioner did not complete the required records. He later testified that Petitioner completed the required paperwork after every transaction but did not give the investigator a copy of the paperwork.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order granting Petitioner's application for a pawnbroker license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 7th day of August, 1997.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Letter of Dismissal, a copy of which is attached, and incorporated by reference, in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Larkin Motorworks, LLC d/b/a St. Pete Scooter, be granted a license to sell motorcycles manufactured by Guangdong Qingxin Liantong Industry Co. Ltd. (QNGX) at 3029 Dr. Martin Luther King Jr. Street North, St. Petersburg Filed November 28, 2012 4:25 PM Division of Administrative Hearings (Pinellas County), Florida 33704, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. DONE AND ORDERED this Aq day of November, 2012, in Tallahassee, Leon County, Florida. Bur€éau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this a! I day of November, 2012. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JBijc Copies furnished: Ronald Larkin Larkin Motorworks, LLC 3029 Dr. Martin Luther King Jr. Street North St. Petersburg, Florida 33704 Brett Moorer Parallel Intelligent Transportation, Inc. 6950 Central Highway Pennsauken, New Jersey 08109 Peter M. Spoto Worldwide Scooters, Inc. 457 Highland Avenue Dunedin, Florida 34698 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Charles E. Nelson, was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on February 23, 1990, and issued certificate number 99509. Based on what Officer Nelson told a fellow officer, he had previously worked in law enforcement for 20 years in Toledo, Ohio. On December 12, 1992, Sergeant Charles Anthony Wall of the Jacksonville Sheriff's Office and Dale Wayne Vermillion, a reserve police officer, responded to a call, reporting that a man and a woman were fighting near a convenience store. Officer John Michael McKim also responded to the call, in a separate vehicle, to serve as Sergeant Wall's backup. Tommy Goode and Teresa Pickens were found in a wooded area near the convenience store and were arrested for disorderly intoxication. Because Goode and Pickens were arguing with each other, they were placed in separate police cars. Goode was handcuffed and locked in the back of Sergeant Wall's caged police car, while Pickens was placed in Officer McKim's car. While Sergeant Wall was sitting in the driver's seat of his vehicle completing certain paperwork, including an arrest docket, Officer Nelson arrived in a third vehicle. From the back of Sergeant Wall's car, Goode was yelling offensive comments to all of the officers. After Officer Nelson, who is Black, approached the car, Goode included racial epithets, including the word "nigger," in his continuing offensive comments. Officer Nelson responded to Goode's taunting by saying words to the effect: "I'm not like the rest of these people, I don't need my job. I'll come back and get you." Officer Nelson unlocked the back door of Sergeant Wall's car, leaned in, grabbed, choked, and shook Goode. The reserve officer who could see Goode's face during the attack described it as follows: And when Officer Nelson went into the vehicle, I was standing looking in through the window, and Officer Nelson grabbed Mr. Goode around the neck with his hand and was choking him to a point that I had not seen a human's eyes extend out of their eye sockets so far, so he was choking him pretty hard and kind of shaking him back and forth. Transcript p. 24 Because of Officer Nelson's size and strength, Sergeant Wall needed the assistance of Officer McKim to pull him off Goode and out of the car. In the following excerpt of his testimony, Sergeant Wall described his response to Officer Nelson's actions: So I told him, you know, hey, "What are you doing, get off of him," something to that effect. And that didn't work, so I began to try to pull him off, me and Officer McKim. And it took great effort to get him off, and I don't know if I actually -- he let go, or the effort that it took to pull him off that got him off, I just remember that when he came out of the backseat, that he was like a wild man. I mean, I thought at one point he was going to jump on us. Transcript p. 10 Goode had red marks on his neck when Sergeant Wall transported him to jail. The Sheriff's Department initiated both criminal and administrative investigations of Officer Nelson's attack on Goode. Officer Nelson was first reassigned to a desk job and, ultimately, left the department. Officer Sandra M. Pike participated in the internal investigation of the incident by the Sheriff's Office. When she interviewed Officer Nelson, he told Officer Pike that he lost control and that he intended to shut Goode up. The force used by Officer Nelson was unnecessary. Goode was not posing a threat or trying to escape. The conduct of Officer Nelson constitutes a criminal offense and demonstrates a failure to maintain good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement, revoke certificate number 99509, issued on February 23, 1990, to Charles E. Nelson. DONE AND ENTERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 23rd day of September, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Amy J. Bardill, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Kenneth Vickers, Esquire 214 Washington Street Jacksonville, Florida 32202
The Issue Should Respondent be required to pay Petitioner Twenty-Five Hundred dollars ($2,500.00), as a civil penalty for causing or permitting an out-of-service driver to operate a commercial motor vehicle (vehicle)?
Findings Of Fact Bryant Gay is a Motor Vehicle Compliance Officer who works for Petitioner. He was on duty on March 6, 1998. On that date, consistent with his employment, he stopped a commercial motor vehicle owned by Respondent and operated by Danny Holton. The stop was made in Gadsden County, Florida, on U.S. 90. The time of the stop was approximately 5:00 p.m. The basis for this stop was the suspicion that there was a violation of the weight axle law, premised upon Officer Gay's observation of the truck tires and springs. Once the stop was made the truck was weighed and was found to be of legal weight. But a check of Mr. Holton's driver's license revealed that the license did not carry the proper endorsements to operate a tank vehicle (such as Respondent's) of a capacity of more than one thousand gallons. As a consequence, Mr. Holton was cited for operating the vehicle without the proper driver's license and was fined one- hundred dollars ($100.00), pursuant to citation. Officer Gay also advised Mr. Holton that Mr. Holton was being placed out-of-service. After placing Mr. Holton out-of-service, Dan Strauss, the son of Fred Strauss, who is the owner and president of Respondent, was contacted. At that time Dan Strauss was serving as the acting representative of the Respondent in Fred Strauss' absence. Dan Strauss came to the scene of the stop and paid the $100.00 civil penalty for Mr. Holton's violation of the driver's license requirement that had been cited. Dan Strauss also brought a second driver to drive the subject vehicle back to Respondent's business premises. The second driver was allowed to return the subject vehicle based upon Officer Gay's belief that the second driver had the necessary license endorsements to operate the vehicle. Nothing in the conversation held between Officer Gay and Dan Strauss, at the point in time when the $100.00 civil penalty was paid, and the truck placed in the custody of the second driver, could reasonably be interpreted by Dan Strauss to allow Mr. Holton to continue to operate the subject vehicle before obtaining appropriate license endorsements. Nor did the conversation create a reason to believe that such an operation by Mr. Holton, if discovered by Petitioner's officer, would again be met with a further citation not to exceed $100.00. Nonetheless, Dan Strauss made the business judgment, that a customer, who was in immediate need of assistance to deal with a failed septic system, should not be ignored, even in the circumstance where Mr. Holton would be called upon to drive the subject vehicle to provide the service. Thus, Dan Strauss, having been told by Officer Gay that Mr. Holton was out-of-service to operate the subject vehicle, dispatched Mr. Holton to provide the service to the customer. At around 6:30 p.m., on March 6, 1998, Officer Gay saw Mr. Holton pulling the subject vehicle onto U.S. 27, in Gadsden County, Florida, and stopped the vehicle again. On this occasion, Officer Gay imposed a further citation in the amount of a civil penalty of twenty-five hundred dollars ($2,500.00), against Respondent, for permitting Mr. Holton to operate the subject vehicle when Mr. Holton had been declared out-of-service. When contacted about the additional citation, Dan Strauss told Officer Gay that he understood that Mr. Holton had been placed out-of-service as a driver of the subject vehicle; however, Dan Strauss told Officer Gay, that he, Dan Strauss, had assumed that if Mr. Holton was caught operating the vehicle it would only lead to another $100.00 civil penalty. No facts presented at hearing mitigate the twenty-five hundred dollar ($2,500.00) civil penalty for allowing an out-of- service driver to operate Respondent's vehicle.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes a twenty-five hundred dollar ($2,500.00) civil penalty against Respondent. DONE AND ENTERED this 21st day of September, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1998. COPIES FURNISHED: Kelly A. Bennett, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Fred Strauss Talquin Septic Tank Post Office Box 559 Midway, Florida 32343 Thomas F. Barry, Secretary Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McKibben, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s Notice of Withdrawal of Notice of Establishment and Motion to Dismiss, filed March 16, 2011. Accordingly, it is hereby ORDERED and that this case is DISMISSED. Filed March 25, 2011 9:39 AM Division of Administrative Hearings DONE AND ORDERED this a 7 day of March, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division gf Motor Vehicles this_2&/ day of March, 2011. fe labies Cirmnpale as NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 James L. Ferman, Jr. Ferman on 54, Inc. 24252 State Road 54 Lutz, Florida 33559 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Section
The Issue The issue for consideration in this matter is whether Respondent, Michael L. Pappas, Jr., should be granted permission to purchase 20 percent of the stock in Plaza Dodge, Inc., and be recognized as executive management thereof, or whether the purchase should be rejected because of Mr. Pappas's prior conviction of a felony and alleged bad character.
Findings Of Fact At all times pertinent to the issues herein, Chrysler was a motor vehicle manufacturer licensed to do business in Florida; Plaza was a motor vehicle dealer licensed by the state; and Michael L. Pappas, Jr. was an individual seeking to purchase an ownership share in Plaza Dodge. He has been general manager of Plaza Dodge since January, 1993. On May 9, 1994, Plaza notified Chrysler that Mr. Pappas intended to purchase a 20 percent ownership interest in its shares and become executive manager of the dealership. The existing dealership agreement between Chrysler and Plaza reflects Mr. Pappas' father, Michael L. Pappas, is the sole owner and manager of the dealership. This agreement is not assignable without the consent of Chrysler Corporation. In his application submitted to Chrysler, Mr. Pappas indicated he had been convicted in 1987 of several felony counts dealing with his sale and possession of cocaine in 1985. As a result of that conviction, Mr. Pappas was sentenced to four years in prison, fined $50,000, and placed on five years probation. After he had been incarcerated for approximately six months, Mr. Pappas was placed in to a work release program for five months and then released to serve his five years probation. There is some indication this early release was effected because of prison crowding. The probation was terminated in July, 1991, earlier than scheduled. There is no evidence he has been pardoned. Mr. Pappas' civil rights were restored in August, 1992, through the simple process of applying for it. As was previously stated, he has been serving as general manager of Plaza since January, 1993. Since he has been serving in that capacity, Chrysler has been aware of his position and has not complained. In fact, he has, without objection, attended official functions put on by Chrysler in his capacity as the representative of Plaza Dodge. He was identified as an officer of the dealership when it applied to the state for licensure, and revealed his conviction on the licensure application. The application was approved by the Department of Highway Safety and Motor Vehicles Chrysler has rejected Mr. Pappas' application to purchase an ownership share in the dealership and his proposed executive management thereof citing as grounds for its rejection his prior felony convictions as evidence of his bad character. Chrysler contends that Mr. Pappas' conviction would adversely impact on the public confidence in the dealership and would have an adverse effect on sales. It sells and services vehicles only though its dealers and relies upon its dealerships to project its corporate image. Chrysler is also concerned that, since it accepts warranty claims at face value from its dealers, it must be able to rely on the character and integrity of those dealers to insure the warranty service was performed and the vehicles sold as claimed. No evidence exists to indicate this would not be the case here. The only evidence of the potential for problem came in the testimony of Chrysler's own official in explanation of its policy regarding dealership owners was presented and no indication of any dealership misconduct by Plaza under Mr. Pappas' stewardship was shown. Chrysler has adopted a policy prohibiting approval of anyone for ownership of a dealership who has "a prior felony conviction or other derogatory personal or character reputation or background which could be detrimental to or otherwise harm the image of Chrysler, the dealership, other Chrysler dealers of Chrysler products." Chrysler has attempted to enforce that policy uniformly and has taken the position that the conviction of a felony, by itself, will have a detrimental impact on the image of Chrysler Corporation. The evidence of record in this case does not seem to support that position, however. All during the time of his incumbency as Plaza's general manager the dealership's customer relations, as reflected by sales and service performance, has been rated as good, and those ratings have reflected an improvement over previous years. At no time has Chrysler objected to Mr. Pappas' presence at the dealership until now, and Chrysler presented no evidence of a lack of customer satisfaction with dealership performance or of its dissatisfaction with Plaza's share of the market. By the same token, the financial stability of Mr. Pappas or the dealership was not brought into issue. The evidence of record, through the testimony of others including an area Chrysler dealer, indicates that Mr. Pappas is well versed in the intricacies of operating an automobile dealership and has a good reputation for ability as well as character and integrity in the auto sales and service community. In addition to his employment in the management of a popular family restaurant Mr. Pappas has been involved in several other business partnerships and his partners speak well of his character and his business acumen. Mr. Pappas also appears to have earned the confidence of the community at large. Former law enforcement officials who were in office at the time of his arrest indicated there was no evidence of any serious misconduct on his part aside from that for which he was convicted. In the opinion of the former Tarpon Springs Police Chief, he appears to have been rehabilitated. In addition, Mr. Pappas appears to be a concerned parent and is active in community affairs. He shows remorse for his former misconduct and desires to have another opportunity to prove himself. At the time of his arrest, and during the period prior thereto, when he had been heavily into the use of cocaine, Mr. Pappas, along with his two cousins, was employed in the family restaurant in Tarpon Springs and had advanced to a position of responsibility. The three cousins were soon to assume some ownership interest in the establishment, but because of his conviction, Mr. Pappas was determined to be ineligible to be an officer in a corporation which held a liquor license. While using cocaine, Mr. Pappas periodically had it in his possession at work in the restaurant and was using it at least six days a week. He was involved at the time with a woman, Ms. Gleason, a drug and alcohol addict, to whom he supplied cocaine more than half of the times they were together. He sold cocaine to both Ms. Gleason and to others in order to support his own habit. Many of his sales were of large amounts bringing him several thousands of dollars at a time. Even after he was married in 1983, he continued to use cocaine even though he told his wife he had stopped. There is no evidence of his use or possession of cocaine any time after his release from prison, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order finding that Michael L. Pappas, Jr. is shown to be of good moral character and is qualified to be an equity owner and executive manager of Plaza Dodge, Inc. DONE and ENTERED this 16th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 16th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3869 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. - 9. Accepted and, as appropriate, incorporated in this Recommended Order. 10. - 15. Accepted. 16. - 21. Accepted and incorporated herein. 22. - 26. Accepted and incorporated herein. 27. & 28. Accepted and incorporated herein. - 37. Accepted. 38. Accepted and incorporated herein. Respondent's Proposed Findings of Fact. Respondent has listed two paragraphs 5 in his Recommended Order. Therefore, all reference to Proposed Findings of Fact numbered 6 and after related to the paragraph numbered one less in the proposal. - 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. - 17. Accepted and incorporated herein. Accepted. Accepted. COPIES FURNISHED: Dean Bunch, Esquire Cabaniss & Burke, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Edward Weeby, Esquire Senior Staff Counsel Chrysler Corporation 12000 Chrysler Drive Highland Park, Michigan 48288-0001 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Myers & Forehand 402-B North Office Plaza Drive Tallahassee, Florida 32301 Marie L. Demarco, Esquire D. Scott Douglas, Esquire MacFarlane, Ausley, Ferguson and McMullen 400 Cleveland Street Clearwater, Florida 34615
The Issue Whether or not the application filed by the Petitioner, The Deli, Inc., t/a The Follies, to hold a new series 4-COP, SRX license with the State of Florida, Division of Beverage should be granted.
Findings Of Fact The Petitioner, The Deli, Inc., t/a The Follies, made application to receive a series 4-COP-SRK license from the State of Florida, Division of Beverage. This application was made on December 9, 1976 as shown by the Respondent's Exhibit 1, admitted into evidence and made a part of this record. After reviewing the application the Respondent, State of Florida, Division of Beverage, through its Director, filed a letter of disapproval of the application on January 27, 1977. A copy of this letter is Respondent's Exhibit 2, admitted into evidence and made a part of this record. The letter of denial indicated that the reason for denial was based upon the fact that the corporate officer one, Eugene O. Bernard, was not of good moral character, within the meaning of s. 561.15, F.S. Mr. Bernard is the president of the Petitioner, corporation. In the course of the hearing the Petitioner produced witnesses who established Eugene O. Bernard to be a man of good moral character and in the course of that presentation made out a prima facie case to show good moral character. (It would appear from the position of the parties that the President, Eugene O. Bernard, is over the age of 21 years) The Respondent, State of Florida, Division of Beverage, failed to establish any evidence which would impute the individual good moral character of Eugene O. Bernard, president of the Petitioner, corporation.
Recommendation Based upon the facts as established in this cause it is recommended that any disapproval of the license application which has been made by the Petitioner, The Deli, Inc., t/a The Follies, for a new series 4-COP-SRX license to be held with the State of Florida, Division of Beverage, which disapproval is premised upon the lack of good moral character of the corporate officer, Eugene O. Bernard, be dismissed. DONE AND ORDERED this 21st day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Harry Katz, Jr., Esquire 337 East Forsyth Street Jacksonville, Florida 32202 Charles T. Collett, Esquire Staff Attorney Office of the General Counsel 725 South Bronough Street Tallahassee, Florida 32304
The Issue Whether Respondent's certification as a correctional officer may be revoked or otherwise disciplined pursuant to Section 943.1395(5), Florida Statutes, for failure to maintain the qualifications set out in Section 943.13(7), Florida Statutes, requiring such officer to have good moral character. At formal hearing, Petitioner presented the oral testimony of Benny Morse Platt, D. H. Coburn, Gerald Abdul-Wasi, and Diane P. Enfinger, and had one exhibit admitted in evidence. Respondent presented the oral testimony of his wife, Frances W. Ping, and testified in his own behalf. One Hearing Officer Exhibit (the Prehearing Stipulation) was also admitted in evidence. Thereafter, Petitioner filed the transcript and submitted proposed findings of fact and conclusions of law within the extension of time granted by order. Petitioner's proposed findings of fact are ruled upon, pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order. Respondent submitted no post-hearing proposals.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on November 4, 1974, and was issued certificate number CORR/C-0148. Respondent was first employed by the Florida Department of Corrections on November 4, 1974, as a correctional officer at the Hendry Correctional Institution. At all times material to the issues in the case, the Respondent was so employed and held the rank of lieutenant. During early August of 1984, Benny Platt was incarcerated at the Hendry Correctional Institution as an inmate. Platt was acquainted with Respondent Ping, who approached Platt during this period of time requesting a $10,000 loan to defray Respondent's wife's doctors' bills. Another inmate at the prison, Mark Krebs, was a friend of Platt. On August 10, 1984, Krebs was being held in solitary confinement as a punishment for Krebs' violation of prison rules by drinking and fighting. Platt was interested in helping Krebs to be released from solitary confinement so that Krebs would be eligible for work release. Platt approached Lieutenant Coburn, another correctional officer at Hendry, to obtain some relief for Krebs after Krebs had been in solitary confinement for 2 days. It was common practice for inmates to approach Respondent Ping or any other lieutenant for these types of requests, however, at the particular time Platt approached Lt. Coburn on August 10, 1984, Ping was either on suspension or on some variety of leave due to Ping's two previous heart attacks. Lt. Coburn had worked at Hendry Correctional Institution since 1979 and knew Respondent Ping by virtue of their common employment. Respondent had been Lt. Coburn's superior for some period of time in the past. On August 10, 1984, when Platt requested that Lt. Coburn help Krebs, Lt. Coburn said he did not know if he could help but he would look into the situation. Lt. Coburn then asked Platt what Platt could do for him in return. Platt asked Lt. Coburn if he wanted one of the lieutenants, and Lt. Coburn replied, "For what." Platt told him it was for trying to borrow money from inmates. (TR 25-26) On August 11, 1984, as part of a planned investigative technique to verify Platt's story, Lt. Coburn had Platt place a collect telephone call to the Respondent at the Respondent's home. The Respondent accepted Platt's collect telephone call, and with Platt's permission, Lt. Coburn taped their conversation. Platt told the Respondent that he could not get the Respondent $10,000, but could get $5,000 to $6,000 at low interest with no problems. The Respondent replied that this amount would do. Platt then asked about Krebs' release from solitary confinement. The Respondent stated that he did not know what he could do, but as soon as he got back to Hendry, he would see what he could do. This is basically the reply made by Lt. Coburn when Platt had approached him earlier. On August 14, 1984, Respondent returned to work at Hendry. That day, Platt, under instructions from Lt. Coburn, approached Respondent at the prison and engaged him in conversation, which Lt. Coburn again taped with Platt's permission. Platt told Respondent Ping that he had arranged to get a $5,000 loan for Ping and told Ping to meet with Platt's niece at a place in La Belle, Florida, to pick up the money. Platt used the fictitious name "Sylvia Cox" as his niece's name. On August 17, 1984, Florida Department of Corrections Inspector Diane Enfinger, posing as Platt's niece, "Sylvia Cox," telephoned Respondent at his home. By arrangement, the two met on August 20, 1984, at the Crossroads Restaurant a/k/a White's Restaurant in La Belle, Florida. Prior to Respondent's arrival at the restaurant on August 20, 1984, Lt. Coburn provided Inspector Enfinger with $1,000 in cash loaned for the purpose by the Sanibel Police Department, and Lt. Coburn and Inspector Gerald Abdul-Wasi, a Tallahassee Department of Corrections internal inspector, placed recording and receiving equipment in the restaurant's supply room in order to be able to overhear and record the transmissions of a microphone concealed on Inspector Enfinger's person. Lt. Coburn and Inspector Abdul-Wasi concealed themselves in the kitchen where they had a clear view of the table designated for the money transaction. At the appointed time and date, Inspector Enfinger, masquerading as Sylvia Cox," arrived. Eventually, she approached Respondent Ping at his table and he asked her to join him and his wife and a female dinner guest who were with him. Mrs. Ping suggested that Respondent and "Sylvia Cox" go outside to get some papers. Mr. and Mrs. Ping described Mrs. Ping's intent in making this suggestion as a ruse to see if a promissory note or other record of the transaction would be required so that the Pings would know if the transaction constituted a legitimate loan or a "set up." Respondent and Mrs. Ping had plausible, if not probable, reasons for their state of mind and belief that some plot against them by Department of Corrections personnel was afoot, and Respondent had good probable cause not to trust inmate Benny Platt's several representations to him. Respondent Ping knew Platt's relatives were not from La Belle. Platt had dressed unusually on August 14, 1984 so as to cover the concealed microphone given him by Lt. Coburn and Platt's solicitation of Ping both by telephone and in person had followed warnings received by Mr. and Mrs. Ping concerning attempts to oust Ping from employment due to his heart condition and resultant excessive absences. Although the content of these warnings is pure hearsay, the evidence of the warnings has not been accepted for the truth of the content asserted, i.e. that there was any such plot afoot. It is admissible and has been considered only to show the Respondent's and Respondent's wife's state of mind. Respondent Ping testified that he never intended to accept the loan offered by Platt but that if there were loan papers to sign, he planned to explain to "Sylvia Cox" what he had suspected about a plot before he declined the loan, since in his view, a loan agreement would make the transaction legitimate. Otherwise, he was going to cry "foul" and accuse his superiors of trying to trap him. "Sylvia Cox" and the Respondent went outside to the parking area, but since the authorities' plan was for Cox/Enfinger to remain at a specific table inside the restaurant for her safety and for surveillance purposes, she requested that they return inside. Inspector Enfinger and the Respondent then sat at the designated table. Cox/Enfinger told Respondent that she was unable to get all the money, but had $1,000 with her and would get $4,000 to him later in the week. She produced no papers, but counted out ten one-hundred dollar bills onto the center of the table. Respondent picked up the stack of bills, holding it in both hands, then dropped the money, said he had "changed his mind" and did not need any money, and attempted to leave the table. Lt. Coburn and Inspector Abdul- Wasi came out of the kitchen and arrested Respondent for the offense of unlawful compensation by a public official, Section 838.016, Florida Statutes. There are several inferences that can be drawn from Respondent's dropping of the money, but it is immaterial that Respondent maintains he dropped the bills as part of his intent to unmask a "set up" and could not see the kitchen, or that Lt. Coburn and others believed Respondent fled upon seeing Lt. Coburn and Abdul-Wasi out of the corner of his eye. What is material is that a loan, not a gift, was always contemplated by Platt, Cox/Enfinger, and Respondent. According to Platt, Respondent's original request for a $10,000 loan occurred nearly two weeks before Krebs was confined. This renders it impossible for Respondent's original loan request to have been on a quid pro quo arrangement for promised aid to Krebs. Indeed, Platt testified that, "I needed some favors done, so I told [Coburn] if I could talk to Lt. Ping I could get them done." (TR 11). Platt was clearly attempting to ingratiate himself with Lt. Coburn by his attempts to solicit Ping in order to persuade Lt. Coburn to secure Krebs' release from solitary confinement. Platt, at Lt. Coburn's urging, initiated the idea of releasing Krebs when Platt first phoned Respondent, but Respondent, no more than Lt. Coburn, ever agreed to a quid pro quo arrangement. No witness ever directly stated that the loan was conditioned on such an arrangement between Platt and Respondent. Platt vaguely termed it a "money situation," but Lt. Coburn confirmed that the money transaction between Platt and Respondent was to be a loan (TR 29,32). Respondent Ping never indicated to Cox/Enfinger what the money was for (TR 75). Further, it strains reason that since accommodations were made on a regular basis between corrections officers and inmates to get other inmates out of solitary confinement, that anyone involved in this "money situation" could have believed the real $1,000 (let alone the promised sum of $5,000) was being paid by Platt to Respondent in exchange for getting Krebs out of solitary confinement. Additionally, absent any proof that Krebs would have remained in solitary confinement for what seems an extraordinary length of time (August 9 - August 20) or that Respondent released Krebs, or that Lt. Coburn did not release Krebs, all of the "money situation" seems totally separate and apart from any services, illicit or otherwise, which Respondent may have been asked by Platt to perform. Further, Respondent's behavior, while rather extreme and based on suspicion, is adequately explained by his state of mind. His belief that he was being "set up" is not incredible under the foregoing facts as found. On August 21, 1984, Respondent was terminated from his employment at the Hendry Correctional Institution. On January 21, 1986, the Respondent entered a plea of nolo contendere in absentia to the charge of acceptance of unauthorized compensation pursuant to Section 944.37, Florida Statutes, with knowledge that same is a misdemeanor of the first degree and upon the assurance of the Court that adjudication would be withheld. (P-1). Such a plea is not admissible in a civil proceeding or in an administrative penal proceeding for any recognized purpose. See Sections 90.410, 90.610, Florida Statutes; Section 610.4, Ehrhardt, Evidence (1984); Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), United States v. Georgalis, 631 F.2d 1199,1203 (5th Cir. Unit B, 1980) reh. den. 636 F.2d 315 (1981) and Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 1st DCA 1977). However, Respondent admitted the plea and waived any objections to admission of the plea. (TR-77).
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing this cause as against Respondent. DONE and RECOMMENDED this 18th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 18th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2143 Respondent filed no post-hearing proposals. The following constitutes specific rulings upon Petitioner's proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes: Covered in FOF 1. Covered in FOF 2. 3, 4, 7. Covered in FOF 3. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 4. Covered in FOF 4. Rejected as mere recitation of testimony, as subordinate and unnecessary, as largely not credible and as not supported by the greater weight of the credible evidence in the facts as found. Except as subordinate and unnecessary, covered in FOF 6. Rejected as unnecessary. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 5 and 7. Except as subordinate and unnecessary, covered in FOF 8. Rejected as unnecessary. 14, 15, 16. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 9. 17-18. Rejected as unnecessary. 19, 20, 21. Covered in FOF 10-11, and 14. 22. Rejected as unnecessary. 23, 24. Covered in FOF 12. 25. Rejected as unnecessary. 26, 27. Except as subordinate and unnecessary, covered in FOF 13. 28, 29, 30. Except as subordinate and unnecessary, covered in FOF 14. Covered in FOF 16. Except as subordinate and unnecessary, covered in FOF 17. 33, 34, 35, 38 and 39. To the extent supported by the credible evidence as a whole, covered in FOF 17. 36, 37. Rejected as largely subordinate and unnecessary and otherwise as immaterial and as not supported by the greater weight of the credible evidence as found in FOF 17-18. Rejected as unnecessary. Covered in FOF 20. Except as subordinate and unnecessary, covered in FOF. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Gerald T. Ping 6690 Southwest 88th Trail Okeechobee, Florida 34574 Robert R. Dempsey, Executive Director 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 =================================================================
