The Issue The issue is whether the law enforcement officer's certification of the Respondent, Nicholas R. Small, should be revoked for failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, based on two incidents of misconduct. A third incident alleged in the second unnumbered paragraph of paragraph two of the Administrative Complaint was voluntarily dismissed at the beginning of the hearing.
Findings Of Fact Nicholas R. Small was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer before the occurrence of the events alleged in the Administrative Complaint. The Administrative Complaint was filed after a letter of complaint was received from a citizen in April, 1985. This delay in bringing the matter to the attention of the Criminal Justice Standards and Training Commission staff accounts for the delay in the filing of the complaint. On June 13, 1978, Mr. Albert Lee Taylor, his wife and their three small children, were leaving Miami in the family car which was being driven by Mr. Taylor. They were on their way to visit a sick relative in Lake Placid, Florida. Due to Mr. Taylor's work schedule they were unable to begin their trip until after midnight. The Taylors are black. The Respondent, Mr. Small, was a police officer for the City of Hialeah Gardens. He observed the Taylor vehicle as it passed his police car at the corner of N.W. 81st Street and l03rd Avenue. Mr. Small pulled Mr. Taylor's vehicle over because he believed there were deficiencies in the tag light on the car. When Mr. Small left the patrol car and walked to Mr. Taylor's car, he told Mr. Taylor to get out of the car and walk to the back of Taylor's vehicle, which Mr. Taylor did. While using his flashlight, Mr. Small observed a handgun setting in an area between the bucket seats of Taylor's automobile. Mr. Small took possession of the gun. Mr. Taylor carried the gun for protection during the family's travel. Mr. Small arrested Mr. Taylor and while doing so required him to place his hands on the hood of the police car to conduct a pat- down search of Mr. Taylor. The police car engine was running. The hood of the police car was hot to the touch which made it difficult for Mr. Taylor to take the position which Mr. Small required him to assume. Small told Mr. Taylor to spread his legs so that he could be patted-down. Mr. Taylor had recently had hip surgery to replace the ball joint of his hip with an artificial joint. This restricted his range of motion and any attempt to move the leg beyond its range resulted in severe pain. Mr. Taylor spread his legs as far as his hip condition would permit without pain. Mr. Small became dissatisfied with Mr. Taylor's stance and told him to spread his legs more. Mr. Taylor told Mr. Small that he had already spread his legs as far apart as he could with a pin in his hip. Mr. Taylor's wife, who was near by, told Mr. Small that she was a nurse, that Mr. Taylor had a pin in his hip, and that he could spread his legs no further apart. Mr. Small told Mrs. Taylor to "shut up" and shouted that he did not care about that. Mr. Small took his leg and placed it between Mr. Taylor's feet and, by pushing outward, forced Mr. Taylor's legs further apart. Mr. Taylor lost his balance and, as a result of the action, fell on the hood of the car. This caused Mr. Taylor severe pain at the time and resulted in increased pain and tenderness in the leg for several weeks. Mr. Small took Mr. Taylor to jail. Mr. Taylor was never convicted of any crime as the result of that arrest. The next incident alleged in the Administrative Complaint took place on October 24, 1981, when Mr. Small was a uniformed officer for the City of Opa- Locka. Mr. Small had been sent to the scene of a disturbance near Rutland Street and 22nd Avenue. Rayfield Brown, Lloyd Johnson, and his two-year old daughter Fiona were there. Mr. Small and other officers arrived and Mr. Brown and Mr. Johnson were arrested and placed in Mr. Small's police car. After the arrest Mr. Small got into the police car to drive Mr. Johnson and Mr. Brown to the police station. On the way to the police station, Mr. Small turned onto Rutland Street. Mr. Brown looked at the sidewalk on the street corner and saw Mr. Johnson's child, Fiona, standing alone on the sidewalk and crying. Mr. Johnson saw his daughter as they passed the corner and asked Mr. Small to stop the car and pick the child up. Mr. Johnson pleaded with Mr. Small to pick up his daughter so that she would not be left alone on the street but Mr. Small did not stop to attend to the child or take any other action to assure that another officer would take care of the child, thus leaving her abandoned in a urban residential area.
Recommendation It is RECOMMENDED that the law enforcement officer certification of the Respondent, Nicholas R. Small, be REVOKED. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2383 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The substance of Petitioner's proposed findings of fact have been accepted. Rulings on Proposed Findings of Fact Submitted by Respondent No proposed findings of fact were submitted. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Peter Kneski, Esquire Biscayne Building, Suite 626 19 West Flagler Street Miami, Florida 33130 Rod Caswell, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact Stipulated Facts Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974. At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant. On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1 At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour. As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender. Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him. On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body. On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been aware of the damage or the repairs being made to the patrol vehicle. On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office. On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee. Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident. Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair. At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident. At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis. Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present. Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting. According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said. As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent. On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation. On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting. Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview. This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2 Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff." While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004). Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall. Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded: Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy? A I'm testifying on my past practice. Q Okay. But you don't have any specific recollection of speaking with him about this incident? A I cannot recall the conversation. Q And you could not swear to actually having notified him in July when this incident happened? A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident. Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff. Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired. When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows: Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of. Lashley: That was during the truancy roundup, correct? Hardy: Correct. Lashley: ...or detail, back in first week in October? Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be. Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said... Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy. DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of December, 2005.
The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Mr. Marchetti was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on August 30, 2008, and was issued law enforcement certificate number 278005. Mr. Marchetti was not employed by a criminal justice agency on October 30, 2016. On that date, in the early afternoon, Deputy Lawhorn was working as a road patrol deputy with Deputy Brewster, her field training officer (FTO), during an early phase of her training. The deputies arrived at 108 Petals Road in Fort Pierce in their marked patrol unit to serve an injunction for protection, a civil restraining order, directed to Timothy Marchetti. The deputies were to identify the person to be served, provide him a copy of the injunction papers, explain what the order required, and advise of the court date. The deputies knocked on the door, and Mr. Marchetti answered the door. The deputies, wearing St. Lucie County Sheriff's Office uniforms in plain view of Mr. Marchetti, announced that they were there to serve process on Timothy Marchetti and asked to speak with him. Mr. Marchetti falsely identified himself as his brother, Mark Marchetti, with a date of birth of September 15, 1983. Mr. Marchetti added that he was often mistaken for his brother. The deputies asked when Timothy Marchetti would be returning. Mr. Marchetti responded that Timothy was at church with his mother and should return shortly. The paperwork that the deputies had been provided prior to serving the injunction included a driver's license photo, and that photo appeared to match the individual the deputies were talking to. The paperwork also indicated that Timothy Marchetti had an identifying mark, a tattoo on his biceps. When asked to see his biceps, Mr. Marchetti instead showed the deputies his triceps, which had no tattoo. Believing that Mr. Marchetti had lied to them, but wanting to continue to investigate because sometimes brothers do bear close physical resemblance, Deputy Brewster asked Deputy Lawhorn to return to the patrol unit to run the name "Mark Marchetti" through the National Crime Information Center (NCIC) database. At the vehicle, she also pulled up a picture of Mark Marchetti from the DAVID website. That picture did not match the driver's license picture in the deputies' possession or the appearance of the individual that had answered the door. Deputy Lawhorn returned to the doorway, told Deputy Brewster what she had learned and asked him to check the information. After Deputy Brewster went to the vehicle, Mr. Marchetti attempted to leave. Deputy Lawhorn blocked his way and advised him that he could not leave. Mr. Marchetti had not yet been arrested. The deputies had a well-founded suspicion that Mr. Marchetti had lied to them about his identity, and they were continuing their investigation of that crime. At this point, a woman who identified herself as Mr. Marchetti's mother came to the property and encountered Deputy Brewster. She confirmed that the individual in the doorway was her son, Timothy Marchetti. Deputy Brewster returned to the doorway and advised Mr. Marchetti that he was under arrest. After his arrest, the deputies placed themselves on either side of Mr. Marchetti to handcuff him, and Respondent pulled away in "surprise or shock" as he was being handcuffed, but there was minimal, if any, active physical resistance. After his arrest, Mr. Marchetti apologized to Deputy Brewster for lying to him about his identity. Through his deception, Mr. Marchetti resisted, obstructed, and opposed Deputies Lawhorn and Brewster in their execution of legal process. Mr. Marchetti failed to maintain good moral character in that he willfully obstructed law enforcement officers in the lawful execution of their duty to serve an injunction against him by giving them a false name and date of birth. No evidence of any prior disciplinary history was introduced for Mr. Marchetti.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Timothy J. Marchetti in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of five days, followed by a one-year period of probation subject to terms and conditions imposed by the commission. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of January, 2019.
The Issue Whether Petitioner, Eugenia Mays, has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with developmentally disabled persons; and, thus, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification is an abuse of discretion.
Findings Of Fact APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and is charged with serving and protecting adults or children with developmental disabilities, sometimes referred to as vulnerable individuals.2/ Vulnerable populations served by APD may include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. Some of APD’s clients are incapable of expressing their needs or unable to express whether something is wrong. APD also has administrative jurisdiction to enforce the laws governing such licensees. Petitioner is a 55-year-old female seeking licensure from APD to serve as a direct care provider for Respondent’s clients. As part of the application process for employment as a direct service provider, Petitioner was subject to a routine pre- employment background screening pursuant to section 435.04, Florida Statutes. The screening revealed the existence of several disqualifying criminal incidents in Petitioner’s past. In 1987, 1990 and 1994, Petitioner was convicted of possession of cocaine, possession of cocaine with the intent to sell, and the sale of cocaine. Additionally, there were several non- disqualifying events in Petitioner’s background. On January 9, 2017, Petitioner executed her Request for Exemption, which was filed with the Department of Children and Families (DCF).3/ DCF conducts the initial screening of all applicants by making sure all the required documents are present and then it conducts the initial background investigation for APD. Background screening and local criminal records revealed a history of involvement with law enforcement. Petitioner admitted and took full responsibility for the offenses in both the paperwork she filed with APD and in her testimony at hearing. DCF then issued a “high level summary” to APD. Among the items submitted by Petitioner in support of her Request for Exemption were her employment history record, information regarding the final court dispositions of the arrest reports and/or charging affidavit; information regarding the completion of sanctions; her proof of rehabilitation; letters of recommendation; her personal history; an executed affidavit of good moral character; the non-disqualifying issues; and an updated local law result. Several letters were sent to Petitioner seeking additional information, and Petitioner responded to the best of her ability to each request for information. Once Ms. Jones received the DCF summary, she reviewed Petitioner’s documentation. She then checked the court and other systems for any additional charges that may not have been included by the Florida Department of Law Enforcement or the Federal Bureau of Investigation. Ms. Jones also verified that any court-ordered sanctions were completed. Ms. Jones had access to state and federal government databases, including a comprehensive case information system to ensure that all fines and fees were paid, and she checked the applicant’s “driving record through the DMV.” Additionally, she checked Petitioner’s “eligibilities through AHCA and Medicaid.” Ms. Jones then prepared a summary packet, which was provided to the ROM. The ROM must review the packet within a certain time frame and provide a recommendation to the State Office Committee (SOC). ROM Smith identified the factors that he considered when making his recommendation: the disqualifying offense(s); the circumstances surrounding the offense; any proof or some evidence of rehabilitation or counseling; any show of “some remorse and/or ownership of the charges that have been filed”; the possible consequences to “the health and safety of the individuals that” APD serves; and “any non-disqualifying offenses that may have been charged against the individual.” ROM Smith recommended denial of Petitioner’s exemption request. Upon receipt of the ROM’s recommendation, Ms. Jones then prepared a recommendation summary and presented that to the SOC. The SOC consists of APD’s chief of staff and a program administrator from the regional support unit. An APD attorney was present for legal advice. Ms. Jones identified the factors that APD’s SOC considers in making the recommendation for the denial of an exemption request as: “any arrests or criminal convictions after the original disqualifying offense; the employment history; training and education; professional references”; driving record; other agency exemptions or involvement with other agencies; and any inspections or exemptions of the other agencies. Ms. Jones averred that APD takes “into account those inspections or those exemptions.” Once the SOC made its recommendation, Ms. Jones took the two recommendations (the ROM’s and the SOC’s) to APD’s director who reviewed the material to make the final decision. Ms. Jones averred that “most of the time common sense is used” when APD approached the question of rehabilitation standards. That if the issue involved a drug-related offense, one would look for drug rehabilitation, and if that were missing, “that is a lack of responsibility on the applicant’s part.” A review of Petitioner’s application, and her uncontroverted testimony confirmed that she has been employed in several successful occupations since 1990. Petitioner’s first business, started in 1990, was Precise Nail and Beauty Salon (Salon). When the economy went down, Petitioner determined she needed a second job and that is when she started working for a home companion company in Bradenton. The Salon continues in operation today. Petitioner did research to begin her own home companion company and started Precise Home Companions (PHC). PHC is a non- medical operation, which is certified through the state to go into private homes and provide non-medical home care. This care includes preparing meals, doing laundry, making their beds, helping persons with their bills, taking them to and from doctors’ appointments, and whatever other activities they need. Petitioner successfully completed a Level 2 background screening and took the classes and/or training necessary for the license. Petitioner obtained the requisite insurance and continues to hold the appropriate bond for PHC. In setting up PHC, Petitioner was given access to conduct background screenings to hire more staff. Once the staff was on board, Petitioner had to ensure they had training and were tested for “TB.” Petitioner was responsible for making sure the six employees recorded their work hours in order for the payroll service to issue their pay. Petitioner recognized another area of need when a PHC client needed more attention than PHC could provide. Petitioner researched and opened an adult family care home. Petitioner’s adult family care home (AFCH) is licensed by the Agency for Health Care Administration (AHCA). AFCH is Petitioner’s responsibility and she maintains the requisite insurance and bond. AFCH is a home which provides room and board for up to five elderly clients, although only four were in residence on the hearing date. The clients may need assistance with their activities of daily living. AFCH also keeps the residents busy with various activities, outings and events. Disqualifying Offenses Petitioner testified that her “downfall,” as she refers to it, occurred in and before 1994. Between 1987 and 1994, Petitioner (when she was between 25 and 31 years of age) was convicted of possession of cocaine with intent to sell, sale of cocaine, and possession of cocaine, all disqualifying offenses. Petitioner steadfastly maintained that she has never used drugs, but possessed and sold them in order to support her children. No evidence was presented to establish that Petitioner ever used drugs. Petitioner admitted that it was her “decision to do wrong,” and she took full responsibility for those actions. However, Petitioner was clear that it was also her determination to change when she realized she had been wrong. Petitioner did change and for the past 23 years has not had a disqualifying offense. Petitioner changed her environment. She joined a church and became very active in it. She divorced her then- husband who she found to be using drugs. Petitioner recently married a man with a bachelor’s degree in rehabilitation counseling. Petitioner completed the sanctions imposed by the courts, and all fees and costs related to the disqualifying offenses were paid. For the past 23 years, Petitioner has not had any disqualifying offenses. Marvin Smith has known Petitioner for approximately ten years, having married Petitioner’s mother. Smith visits in Petitioner’s home once or twice a month, and does not think her residence is a “destructive environment.” Smith has attended church with Petitioner, and sees her lifestyle as “moving in the right direction.” Further, in the ten years Smith has known Petitioner, he has never seen her act in a violent manner.4/ Marvina Johnson-Allen has known Petitioner for over 20 years, and has witnessed Petitioner caring for people in her church and home. Additionally, Johnson-Allen provided insight into the various successful businesses that Petitioner has started, and Petitioner’s volunteer work in the community. Kathy Barnes has known Petitioner for over ten years, having met her at Petitioner’s beauty salon. Barnes was not Petitioner’s employee, but as a customer, Barnes watched Petitioner work hard. In over ten years, Barnes has never seen Petitioner use drugs or alcohol. At one point Barnes had major surgery, and without being asked by Barnes, Petitioner supplied housekeepers to enable Barnes to recover from the surgery. Edward Gresham has known Petitioner for approximately three years, and is now Petitioner’s husband. Gresham works as a rehabilitation counselor in the health care field, and also works in the home that Petitioner operates. Gresham has successfully cleared a Level 2 background check. Further, he has observed Petitioner ensuring that residents are clothed in their own clothes, are fed, and receive their allowances. In the three years he has known Petitioner, Gresham has not seen Petitioner use alcohol or illegal drugs. Non-Disqualifying Offense APD focused on (in addition to the drug rehabilitation issue) Petitioner’s driving record, and her designation as a habitual driving offender. The basis for this focus was a concern that Petitioner might drive a client to an appointment. Petitioner recently completed a driver’s education course, from which she learned a great deal about her responsibilities as a driver. She paid the fines associated with the offender status, and she has a current, valid work driver’s license. Petitioner anticipates obtaining a completely clear driver’s license in June 2018. In denying the request for exemption, APD “considered all available information that led to [Petitioner’s] disqualification, as well as all information provided by” Petitioner regarding the disqualification. APD denied Petitioner’s request because she had “not submitted clear and convincing evidence of [her] rehabilitation.” Other Attributes of Significance Petitioner has worked consistently over a sustained period in a position in which she cares for multiple persons. By all accounts, Petitioner is a reliable, kind, caring and diligent worker, and her current continuous employment demonstrates that she can be trusted to work appropriately in situations involving vulnerable adults. Petitioner is licensed by AHCA. She holds an exemption from AHCA which has been appropriately renewed since its issuance. Petitioner is allowed to participate in the Medicaid program as a provider. Petitioner completed courses necessary to obtain the requisite licenses. Section 435.07, Florida Statutes, the controlling statute regarding the exemptions from disqualification, provides the following, in pertinent part: Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws. (1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony; * * * (b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption. For the purposes of this subsection, the term “felonies” means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions. * * * (3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed. The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion. * * * (5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency. Rehabilitation is not defined in statute or rule. Petitioner’s last disqualifying offenses occurred in 1994, approximately 23 years ago. At some point, the passage of time itself, without any disqualifying offenses, must be evidence of rehabilitation. While by no means dispositive, the passage of 23 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner’s forthright demeanor and her willingness to discuss her “downfall” and her determination to turn her life around are significant. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was 23 plus years ago. Petitioner has successfully worked with elderly persons in a positive and helpful manner, and currently presents no danger to the vulnerable population served by Respondent. The concerns outlined by Respondent in its decision letter, without the benefit of the hearing testimony, were refuted by the credible testimony adduced at hearing. Common sense tells a huge story of Petitioner’s rehabilitated life. Petitioner meets the objective criteria for an exemption from disqualification as established by section 435.07(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities granting Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2018.
The Issue The issue is whether Respondent, Allen P. Perry, a law enforcement officer, committed the offenses set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent was certified by the Commission as a law enforcement officer, having been first certified in August 1999. The Commission issued to Respondent, Certificate No. 186964. At all times relevant hereto, Respondent was employed as a law enforcement officer by the Lee County Sheriff's Office ("Sheriff's Office"). Controlled Substances in Respondent's Patrol Car On or between January 1, 2007, and February 17, 2007, Respondent knowingly and actually possessed cocaine, less than 20 grams of cannabis and Alprazolam, all of which are controlled substances under Florida law. On or between January 1, 2007, and February 17, 2007, Respondent kept the cocaine, less than 20 grams of cannabis, and Alprazolam in a tackle box which was in the trunk of his assigned patrol car. Also, in the tackle box were scales, presumptive test kits, baggies, and a knife that had been issued to Respondent by the Sheriff's Office. During the time the cocaine, cannabis, and Alprazolam were in the tackle box in the trunk of Respondent's assigned patrol car, there was no active criminal investigation pertaining to those items. Moreover, there was no other lawful or bona fide reason for Respondent's having the controlled substances in the tool box in his assigned patrol car. Sheriff's Office Policy on Controlled Substances At all times relevant to this proceeding, the Sheriff's Office had a policy governing how law enforcement officers should handle the controlled substances that they confiscated or took into custody during the course of performing investigations or other job responsibilities. Pursuant to that policy, law enforcement officers were required to label and package the controlled substances that they confiscated or took into custody in the performance of their duties. On the label, the officers were to note the date, time, place, from whom, and the circumstances under which the controlled substances were confiscated. Furthermore, the officers were to indicate on the label the case number related to the specific controlled substances and whether the controlled substances were to be destroyed or preserved as physical evidence. Finally, the policy required that the law enforcement officers take any controlled substances they confiscated during their shifts to the Sheriff Office's drug repository at the end of their shifts. Notwithstanding the Sheriff's Office policy, officers sometimes did not comply fully with the policy. The most common infraction involved instances when an officer's shift ended late at night or very early in the morning and, his assigned work location was not close to the drug repository. In those instances, officers sometimes waited until later that day or the following day to take the confiscated controlled substances to the drug repository. This delay in an officer's taking the controlled substances to the drug repository is a violation of the policy. However, apparently because such delay is a relatively short one, the Sheriff's Office takes no disciplinary action against the officer in this situation. Respondent was aware of the Sheriff's Office policy concerning how controlled substances confiscated or taken into custody by officers should be handled. Nevertheless, with regard to the cocaine, cannabis, and Alprazolam which Respondent confiscated, he did not comply with that policy. Respondent did not label the cocaine, cannabis, and Alprazolam that were in the tackle box in the trunk of his assigned patrol car. Moreover, Respondent never took those controlled substances to the Sheriff Office's drug repository, but kept them in the trunk of his patrol car for about two months. In fact, the cocaine, cannabis, and Alprazolam remained in the trunk of Respondent's patrol car until an officer with internal affairs found them there during an investigation. Respondent testified that he confiscated the cocaine, cannabis, and Alprazolam during traffic stops he made while performing his duties with the Sheriff's Office. However, because the above-referenced controlled substances were not labeled or otherwise marked, the date and circumstances regarding how they came into Respondent's custody cannot be accurately determined. Respondent's Field Training Practice At all times relevant hereto, Respondent was assigned to the Sheriff's Office field training program as a field training officer ("FTO"). As an FTO, Respondent supervised and trained newly-hired recruits who were assigned to him for about a month. In February 2007, Respondent was assigned the task of serving as FTO for Deputy Kenneth Sherman, a recruit with the Sheriff's Office. During Phase Two field training, Deputy Sherman was required to accompany Respondent as he (Respondent) performed his normal patrol duties. While serving as FTO for Deputy Sherman, Respondent showed him the cocaine, cannabis, and Alprazolam in the tackle box in the trunk of his patrol car. Respondent's reason for doing so was that he thought Deputy Sherman should know what various controlled substances looked like. At the time Respondent showed Deputy Sherman the cocaine, cannabis, and Alprazolam, he also explained to him how to test for various drugs, narcotics, and/or controlled substances. At or near the time Respondent showed Deputy Sherman the controlled substances, he told Deputy Sherman that the "policy" required that drug/narcotics and/or controlled substances that had been confiscated and that were not needed as evidence should be turned in to the drug repository for destruction. However, Respondent stated that, notwithstanding that policy, he kept the cocaine, cannabis, and Alprazolam for training purposes. Respondent believed that recruits should know what narcotics and/or controlled substances looked like. Consistent with that belief, Respondent showed drugs/narcotics and/or controlled substances that were in the tackle box in his patrol vehicle to some of the recruits he was training. Respondent never sought or obtained authorization from any official at the Sheriff's Office to keep and use confiscated narcotics and/or controlled substances as training aids. Showing recently confiscated drugs/narcotics and/or controlled substances to a recruit or trainee may be lawful when such display occurs during the course of an active investigation or other official duties. However, to do so when there is no investigation, and/or after a case is closed, is not a bona fide lawful purpose. Law enforcement officers are not authorized to be in possession of controlled substances. The only time officers are allowed to be in possession of controlled substances is when they have been confiscated or taken then into custody during the course of their law enforcement duties (i.e., an active investigation pertaining to those controlled substances). In such cases, the officers are responsible for complying with the Sheriff Office policy discussed in paragraph 7. February 2007 Incidents On February 17, 2007, at about 2:00 a.m., Respondent and Deputy Sherman were patrolling a high crime area in Bonita Springs near an apartment complex. They observed a car or small sports utility vehicle in the middle of the apartment complex parking lot with several people standing around the vehicle. After Respondent drove his patrol car into the parking lot, almost everyone who had been standing near the vehicle scurried away. Because the vehicle in the middle of the parking lot belonged to Anthony Lattarulo, he approached the patrol car to explain the reason his vehicle was there. Mr. Lattarulo then told Respondent and Deputy Sherman that he needed a "jump" for his battery and/or that he needed gas for his Honda. When Mr. Lattarulo approached the patrol car, Respondent immediately began interrogating him. Meanwhile, at some point during the interrogation, Deputy Sherman checked Mr. Lattarulo's identification and also conducted a pat-down of him.2 During the interrogation, Respondent asked Mr. Lattarulo where he was coming from, what he was doing there, whether he did drugs, was he there to buy drugs, and when was the last time he smoked crack. Mr. Lattarulo told Respondent that he had been "hanging out" with a guy who lived in the apartment complex; he then pointed to a unit in a nearby building in the apartment complex, presumably the one in which the person he had been visiting lived. Mr. Lattarulo never told Respondent that he had been using crack cocaine or any other illegal drug or purchasing such drugs while visiting someone in the apartment complex. Nonetheless, Respondent seemed to believe or suspect that Mr. Lattarulo had not just been "hanging out," but had been at the apartment complex using and/or purchasing illegal drugs.3 After Mr. Lattarulo pointed to the apartment where he had been visiting, Respondent told him to knock on the door of that unit, and tell "those people" to come out because "Perry" wanted to talk to them. Mr. Lattarulo told Respondent more than once that he did not want to knock on the door and tell the occupant(s) that the "police" wanted to talk them. Nonetheless, he did so reluctantly after being threatened by Respondent. After no one came to the door of the unit, Mr. Lattarulo returned to the area where Respondent and Deputy Spencer were and told Respondent that no one was in the unit. Although no one answered the door of the unit when Mr. Lattarulo knocked, Respondent seemed unconvinced that no one was in the unit. Respondent then ordered Mr. Lattarulo to return to the unit where he had already been and knock on the door again. As he had done initially, Mr. Lattarulo told Respondent that he did not want to knock on the door and tell the occupants to come out. However, Mr. Lattarulo complied with Respondent's demand after Respondent threatened him. Still no one came to the door of the apartment unit. Mr. Lattarulo knocked on the door of the unit as described in paragraphs 25 and 26 only because of the threats made by Respondent. It is unclear which threat Respondent made first. However, in one instance, Respondent threatened to use Mr. Lattarulo or Mr. Lattarulo's head as a battering ram to "open that door." In the other instance, Respondent threatened Mr. Lattarulo by telling him if he refused to go to the apartment unit and knock on the door, "I'll go into my pharmaceutical refrigerator [and], let you pick the drug you want to go to jail for tonight." After no one answered the door of the apartment unit the second time, Mr. Lattarulo again returned to the area where Respondent and Deputy Sherman were located. At or about that time, Deputy Sherman apparently noticed a junction box on the side of the apartment building. Not knowing what the "box" was, Deputy Sherman asked Respondent. Respondent then instructed Mr. Lattarulo to go pull the lever and "we'll see what it is." As Mr. Lattarulo began walking toward the junction box, Respondent told Deputy Sherman that when Mr. Lattarulo pulled the lever of the junction box, the electrical power would go off in that apartment building. As Respondent had indicated, as soon as Mr. Lattarulo pulled the lever, the electricity went off in the entire apartment building. After several seconds, Respondent then ordered Mr. Lattarulo to turn the electricity on. Mr. Lattarulo then pulled the lever, and the electricity in the building came back on. Following the incident involving the junction box, Respondent and Deputy Sherman left the apartment complex. Internal Investigation Later on February 17, 2007, or the next day, Deputy Sherman called an unidentified person with the Sheriff's Office to share his concerns about the incident involving Mr. Lattarulo and to seek advice. As a result of the conversation between Deputy Sherman and the unidentified person, Sergeant Timothy Fisher of the Sheriff Office's internal affairs division was contacted and informed of the allegations made by Deputy Sherman. In response to the information given to Sergeant Fisher, an internal investigation was immediately commenced. As part of that investigation, Sergeant Fisher searched the trunk of Respondent's assigned vehicle and discovered the cocaine, less than 20 grams of cannabis, and Alprazolam in the tool box.4 After the controlled substances were found in the tackle box in the trunk of Respondent's patrol car, Sergeant Fisher interviewed Respondent. During those interviews and/or sworn statements, Respondent gave inconsistent statements regarding why the controlled substances were in the trunk of his patrol car. Respondent's stated reasons included the following: (1) He used the controlled substances as an aid for training recruits; (2) He forgot the controlled substances were in the tackle box in the trunk of his assigned patrol car; and (3) He was either too "lazy" or "stupid" to turn them in for destruction. Sergeant Fisher followed up on Respondent's explanation that he failed to take the drugs to the repository because he was lazy by reviewing files of the Sheriff's Office. The credible testimony of Sergeant Fisher was that those records documented that Respondent had gone to the Sheriff's Office drug depository three times to deposit drugs and/or other evidence after the date he reported confiscating the controlled substances that were in his patrol car. At this proceeding, Respondent also gave inconsistent statements regarding the controlled substances in the tool box. He testified that he used the above-referenced controlled substances for training recruits. Nonetheless, he stated that he intended to submit them for destruction, but had "no idea" when he would do so. Also, despite testifying that he used the controlled substances for training, Respondent testified that he never moved or touched the controlled substances from the tackle box or from the trunk of his patrol car. According to Respondent's testimony, he, instead, required Deputy Sherman to retrieve the test kit, scale, and controlled narcotics from the toolbox. Respondent was terminated as a deputy sheriff with the Sheriff's Office. Credibility of Witnesses With regard to the February 17, 2007, incident involving Mr. Lattarulo, Respondent testified that he never threatened to plant drugs or controlled substances to place charges on Mr. Lattarulo. Respondent also initially testified that he never threatened to use Mr. Lattarulo as a battering ram; however, on cross-examination, he acknowledged that he "may" have threatened to use Mr. Lattarulo's head as a battering ram. The testimony of Deputy Sherman regarding the events of February 17, 2007, including the threats made by Respondent to Mr. Lattarulo is more credible than that of Respondent. Moreover, Deputy Sherman's testimony is corroborated by the credible sworn statement of Mr. Lattarulo given on February 27, 2007.5 Respondent contends that Deputy Sherman made the allegations concerning the threats, because he may have been afraid that he was not going to pass the field-training phase. Respondent further contends that Deputy Sherman's fear was based on Respondent's documenting areas of concern (i.e., officer safety skills and radio skills) which could have jeopardized Deputy Sherman's passing the field-training phase. However, there is nothing in the record which indicates that Deputy Sherman had been notified or had reason to believe that he might not pass his Phase Two training.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order finding that Respondent, Allen P. Perry, failed to maintain good moral character as defined by the Commission and revoking his correctional certificate. DONE AND ENTERED this 1st day of September, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 1st day of September, 2009.
The Issue Whether the Petitioner is eligible for special risk/high hazard credit for his employment by the Collier County Sheriff's Department from February 1970 to September 1971.
Findings Of Fact On February 11, 1970, Petitioner Grady Johnson ("Petitioner") became employed by the Collier County Sheriff's Department as a radio operator. In his position as a radio operator, the Petitioner was responsible for communications between the Collier County Sheriffs Office and road patrol officers. During the period of time the Petitioner was employed as a radio operator, he generally worked the shift from approximately 3:00 p.m. to 11:00 p.m., occasionally worked the 11:00 p.m. to 8:00 a.m. shift and infrequently worked the 8:00 a.m. to 3:00 p.m. shift. As the radio operator, the Petitioner's primary responsibilities were to operate the radio communications system for the Sheriff's Department. Petitioner was not a full-time Deputy Sheriff and did not perform the duties of a full-time criminal law enforcement officer. During various evening hours, the Petitioner, as the radio operator, was the sole county employee on the detention premises. On occasion the radio operator would assist in the physical restraint of a prisoner pending the arrival of deputies, however, such duties were not required on a full-time basis and were not a part of the Petitioner's primary responsibilities. The radio operator was not required to assist in admitting prisoners to the detention facility on a regular basis. Admission forms were generally completed by an arresting officer. The newly-admitted prisoner was generally escorted to a cell by a "turn-key" (another prisoner who was apparently trusted by authorities to handle such tasks). If assistance was required by the turn- key, it was generally provided by the arresting officer. Upon becoming employed as a radio operator by the Collier County Sheriff's Department, the Petitioner was enrolled as a member of the State and County Officers and Employees' Retirement System, (commonly referred to as the "SCORES" system.) The SCORES system provided a "high hazard" classification for certified law enforcement personnel. During the relevant time at issue in this proceeding, the Petitioner was not included within the "high hazard" category because he was not included within the "law enforcement officer" classification of the system. The Collier County Sheriff's Department did not certify the Petitioner as a "high hazard" employee under SCORES. In December 1970, the Petitioner elected to enroll in the newly- established Florida Retirement System ("FRS"). The FRS included a category of "special risk" employees who are entitled to increased retirement credits. During the period of employment as a radio operator, the Collier County Sheriff's Office did not designate the Petitioner as a "special risk" employee and did not pay enhanced contributions into the retirement plan on his behalf. On October 16, 1971, the Petitioner was promoted to a road patrol position within the Collier County Sheriff's Office, at which time, the Petitioner was certified by the employer as holding a "special risk" position. The Respondent approved the Petitioner's enrollment in the special risk class in October 1971.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a Final Order be entered denying the Petitioner's application for high hazard or special risk membership in either SCORES or the FRS. DONE and RECOMMENDED this 23rd day of December, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 23rd day of December, 1992. APPENDIX CASE NO. 92-3033 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact fail to comply with Rule 60Q- 2.031(3), Florida Administrative Code, which requires that proposed findings be supported by citations to the record. Although the Petitioner's proposed findings fail to set forth such citations, the Hearing Officer has reviewed the transcript and exhibits in order to set forth the following rulings. Accordingly, the Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, unnecessary. Last sentence rejected, contrary to greater weight of credible and persuasive evidence which establishes that the Petitioner's primary responsibilities were as the radio operator. 5, 6. Rejected, unnecessary. Rejected, not supported by credible and persuasive evidence. The greater weight of the evidence establishes that the Petitioner's primary responsibility was to operate the radio communications system linking the road deputies. Other responsibilities were secondary and were preformed on an irregular basis. "Booking" of prisoners was primarily handled by the arresting officer and "turn- key". Rejected, contrary to the greater weight of the credible and persuasive evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan B. Kirkland Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 Donald P. Day, Esq. Courtland Plaza, Suite 309 2500 Airport Road South Naples, Florida 33962 Larry D. Scott, Esq. Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue The issue is whether Respondent Joseph M. Conover committed the acts alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Mr. Conover is a licensed security officer. He holds Class D, DI, G, and MB licenses from the Department. His license numbers are D9817475, DI2000134, G2003451, and MB9900202. Mr. Conover's Class G license allows him to carry a firearm, subject to the provisions of Section 493.6115, Florida Statutes. Mr. Conover has been licensed by the Department since 1998, and he has been an armed security officer since 2000 or 2001. Mr. Conover is the president and chief operating officer of Nova, which has its principle office in Brevard County. Mr. Conover resides in Brevard County. Nova's principle office is located within his home. Mr. Conover has managerial and supervisory duties in his position as president and chief operating officer of Nova. The duties include scheduling armed security guards for clients, ensuring the guards' compliance with applicable regulations, soliciting new clients, and maintaining contact with clients and the guards that are on duty. At the time of the events giving rise to the Administrative Complaints, Nova provided armed security guard services for ten apartment complexes and residential communities in Orlando. Nova did not provide security services for any location in Brevard County. On April 29, 2006, while in route to an armed security post in Orlando, Mr. Conover stopped to render aid at a motor vehicle accident in Brevard County. He rendered emergency medical care2/ to one of the individuals involved in the accident, and he also directed traffic at the scene. He was wearing his security guard uniform and carrying his firearm in plain view at the time. On May 1, 2006, while in route to an armed security post in Orlando, Mr. Conover stopped at a Starbucks in Brevard County. He got out of his car and went into the store to purchase a cup of coffee. He was wearing his uniform and carrying his firearm in plain view at the time. Mr. Conover testified that he was "on duty" at the time of each incident because he was performing managerial and supervisory duties while in route to Orlando. He testified that immediately prior to the accident on April 29, 2006, he was fielding calls on his two-way radio from the armed security guards who were on duty in Orlando, and he can be seen talking on his radio or cell phone on the videotape of the May 1, 2006, incident. However, there is no credible evidence that Mr. Conover was providing any managerial or supervisory duties to the security guards during the time that he was rendering emergency medical care and directing traffic at the accident scene. The managerial and supervisory duties that Mr. Conover was performing at the time of the incidents did not require him to be armed. First, as Mr. Conover acknowledged, there is a difference between managerial and supervisory duties and armed security guard duties. A Class G license is not required in order to perform managerial and supervisory duties for armed security guards, particularly where such duties are being performed off-site. Second, Mr. Conover was nowhere near the sites that Nova was providing armed security services at the time of the incidents. He was approximately 40 miles, and at least 25 to 30 minutes, away from the sites. Criminal charges were brought against Mr. Conover for impersonating a police officer and carrying a weapon in plain view based upon his activities at the accident scene on April 29, 2006. The charges were nol prossed by the State. The Department began its investigation of Mr. Conover in May 2006 based upon information received from the Indialantic Police Department in Brevard County concerning the incidents described above. In July 2006, Mr. Conover's attorney sent a letter to the Department requesting the Department's "official interpretation of Florida Statutes § 493.6115 regarding carrying of weapons and firearms." The letter included the following summary of a conversation between Mr. Conover's attorney and Art Varnadore, who the letter represented to be the Chief of Regulation and Enforcement for the Department: ccording to Florida Statutes Chapter 493, a security officer can only carry a firearm while on duty at an armed post. A security agency manager can only carry a firearm while on duty at an armed post. A security agency manager or security officer traveling between armed posts may keep his firearm on him in the car. However, he cannot leave the vehicle with a firearm unless at an armed post. The Department did not respond to this letter or a follow-up letter sent by Mr. Conover's attorney in August 2006. The letters were sent after the Department began its investigation into the incidents giving rise to the Administrative Complaint. There is no evidence that Mr. Conover ever sought guidance from the Department prior to the incidents. Mr. Conover has been complying with the procedures quoted above since July 2006. The Department publishes a "Security Officer Handbook," as required by Section 493.6123(2), Florida Statutes, in order to provide guidance to licensees regarding "the legal authority, rights, and obligations of his or her specific license." A copy of the handbook is supposed to be provided to each licensee. The handbook includes the following provisions pertinent to this case: e. Class "D" Security Officers who also possess a Class "G" license may carry a firearm only when the duty assignment requires armed security and only while on the post of duty. Section 493.6115(3), F.S. Example: A Class "D" Security Officer who also has a Class "G" license and is normally assigned to an armed post is assigned, temporarily, to an unarmed post. He may not carry his firearm on the temporary assignment. Example: The same security officer, while serving on his usual armed post, may not wear his firearm when he leaves his assigned post for other than duty purposes, such as for lunch, or when traveling to or from home. During such non-duty periods, the firearm must be removed and secured. * * * g. While the licensee is on duty, his firearm must be carried in a holster and in plain view. It may only be carried concealed under those conditions addressed in VIII.c. Section 493.6115(3), F.S.[3/] The handbook does not include a specific example addressing the conduct of licensees responsible for managing and supervising armed security guards. The examples in the handbook focus on licensees with assigned "posts of duties." Mr. Conover did not rely on any of the guidance in the handbook; he testified that he did not recall ever receiving a copy of the handbook. Mr. Conover has no disciplinary history with the Department. There is no credible evidence that the Department investigated or prosecuted this case for an "improper purpose," as alleged by Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Mr. Conover guilty of carrying a firearm in violation of Section 493.6115(3), Florida Statutes, on April 29, 2006, and on May 1, 2006, as charged in Administrative Complaint No. CD2006-1316; and Imposes an administrative fine of $100 on Mr. Conover; Issues a formal reprimand to Mr. Conover. DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 20th day of March, 2008.
The Issue The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact The Agency Action Petitioner seeks an exemption from disqualification to allow her to serve as a direct care service provider for One Mainstream, a direct services provider for developmentally disabled clients. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and charged with serving and protecting children or adults with developmental disabilities. Vulnerable populations served by APD include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down’s syndrome. Some of APD’s clients are incapable of expressing their needs, or unable to express whether something is wrong. As part of the application process for employment as a direct services provider with One Mainstream, Petitioner was subject to a routine pre-employment background screening pursuant to section 435.04. The screening revealed the existence of two disqualifying criminal incidents (resulting in three charged offenses) in Petitioner’s past. The offenses were described in the Joint Prehearing Stipulations as follows: In April 1998, Petitioner committed her first disqualifying offense, Domestic Violence Battery, a first degree misdemeanor. Petitioner failed to appear before the court and an arrest warrant was issued. Subsequently, Petitioner pled nolo contendere to the offense and adjudication was withheld. Petitioner was approximately thirty-four years old at the time of this offense. Petitioner was ordered to pay various court costs/fines. In January 2002, Petitioner contemporaneously committed her second and third disqualifying offenses, two counts of Domestic Violence Battery, first degree misdemeanors. Petitioner failed to appear before the court and an arrest warrant was issued. Petitioner contends there was no physical violence involved in these offenses. Petitioner pled guilty to the offenses and was adjudicated guilty. Petitioner was approximately thirty-seven and nine months old at the time of this offense. Petitioner was ordered to serve thirty days in the county jail and pay various court costs/fines. As a result of the background screening results, Respondent determined that Petitioner was disqualified from further employment in a position of special trust with children or the developmentally disabled. On February 16, 2015, Petitioner filed her Request for Exemption. All such requests are made to the Department of Children and Families, which conducts the initial background investigation. The file was assigned to Beatriz Blanco, DCF’s central region background screening coordinator. By July 10, 2015, the request for exemption had been assigned to Respondent. Daniella Jones, APD’s state office exemption background screening coordinator, requested additional information regarding Petitioner’s drug counseling and anger management courses. The record is not clear as to which items contained in Respondent’s Exemption Review file, if any, were submitted in response to Ms. Jones’ request. Among the items submitted by Petitioner in support of her Request for Exemption were a completed employment history record; information related to her having obtained a certified nursing assistant license; and six letters of recommendation. The Exemption Review file also included Petitioner’s written explanation of the disqualifying offenses and subsequent non- disqualifying incident1/; and copies of law enforcement, prosecution, and court documents related to the disqualifying offenses, a subsequent non-disqualifying incident, and three prior non-disqualifying incidents. Petitioner responded to the best of her ability to each request for information. Among the factors identified by Mr. Lewis as bases for the recommendation of denial of the exemption by staff was the perception that Petitioner’s answers to questions about her past conduct were “immature,” that she did not take responsibility for some of the past incidents, and that she did not show sufficient remorse for those incidents. The exemption request was ultimately provided by APD staff to the director of APD, who entered the notice of denial on August 27, 2015. Petitioner’s Background Petitioner grew up in a tough neighborhood in Brooklyn, New York. Her parents were hard drinkers, and she was raised in an environment in which the use of alcohol was accepted. By the time she was 17 years of age, Petitioner was a drinker and a “brawler.” Over the years, Petitioner’s issues with alcohol led her into drunken choices that resulted in the brushes with law enforcement and the criminal justice system described herein. Petitioner readily acknowledged that she had been an alcoholic during the times when she committed the disqualifying offenses. The Disqualifying Offenses 1998 Disqualifying Offense On or about April 18, 1998, Petitioner was told by a friend that her husband was staying with a girlfriend at an apartment in a nearby town. Petitioner “had some drinks” and went to the apartment to confront her husband. She burst in on the husband and his girlfriend unannounced and became embroiled in a brawl. The police were called. By the time the police officer arrived, Petitioner was gone. The police report,2/ which was based on the statements of the husband and his girlfriend, indicated that Petitioner threw a conch shell at the husband, striking him in the head, whereupon she left the apartment, returning to throw a boot at the husband which missed and broke a clock. Since Petitioner was not on the scene, and based on Petitioner’s testimony described herein, an inference is drawn that the husband and girlfriend painted as exculpatory a picture as possible, omitting anything that could cast any blame on the husband for the incident. Petitioner testified that the altercation was not nearly as one-sided as portrayed in the hearsay police report, with the husband holding her down and choking her at one point. She denied throwing the conch shell, but admitted throwing the boot and breaking the clock. Although the evidence suggests that Petitioner may indeed have thrown the shell, the evidence also supports that the husband was more than a passive victim. Petitioner was arrested for “domestic violence (simple).” She pled nolo contendere to Battery (Domestic Violence), a first-degree misdemeanor. Adjudication of guilt was withheld, and Petitioner was ordered to pay $620 in court costs. 2002 Disqualifying Offense On or about January 23, 2002, Petitioner was involved in an altercation with her boyfriend, in which her sister was involved. Petitioner was, according to the police report, “intoxicated and [ ] belligerent.” Petitioner had earlier received an inheritance from her mother, which she used to buy a house in Tampa, Florida. Her boyfriend moved in with her. The money soon ran out. Nonetheless, the boyfriend would not get a job, would not contribute to expenses, and would not move out. Petitioner and the boyfriend got into an altercation when she tried to evict him, during which Petitioner hit him with a frozen porterhouse steak. Petitioner indicated that she selected that as her weapon of choice, since he was eating all of her steaks but not paying for them. Petitioner was unclear as to the involvement of her sister, Geraldine Dreviak née Schubert, who also lived in Petitioner’s house, but denied that her sister was injured during the fracas. Petitioner introduced a letter from Ms. Dreviak in which Ms. Dreviak confirmed the boyfriend’s indolence, described her participation in requests that he leave, and substantiated Petitioner’s testimony that Ms. Dreviak was not injured. No objection was raised as to the authenticity of the letter, though it was noted that the letter was hearsay. The letter was admitted, and is used in this proceeding “for the purpose of supplementing or explaining other evidence.” § 120.57(1)(c), Fla. Stat. Thus, the evidence supports a finding that Ms. Dreviak suffered no physical injury in the altercation between Petitioner and her boyfriend. As a result of the altercation, Petitioner was arrested for “simple battery.” She pled guilty to Battery (Domestic Violence), a first-degree misdemeanor. Petitioner was sentenced to 30 days in jail, with credit for time served, and assessed $678 in court costs and liens. Petitioner completed or was lawfully released from all nonmonetary sanctions imposed by the courts, and all fees and costs related to the two disqualifying offenses were paid. Other Non-Disqualifying Offenses Properly Considered Offense In September 2002, Petitioner was arrested in New York with several other persons for Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor. The controlled substance was cocaine. Petitioner contended she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. She testified that she just wanted to be done with the incident, and failed to appreciate the effect it would have in her later life. Petitioner was sentenced to time served and her license was suspended for six months. The incident was not only a singular and isolated event of its kind, but was Petitioner’s last involvement with law enforcement. Improperly Considered Offenses As set forth in the Joint Prehearing Stipulations, Petitioner was involved in the following non-disqualifying offenses: In September 1983, Petitioner committed the offense of Disorderly Conduct. Petitioner was convicted for this offense and adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately nineteen years and five months old at the time of this offense. In October 1988, Petitioner committed the offense of Criminal Possession of Stolen Property. Petitioner contends she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately twenty-four years and six months old at the time of this offense. In December 1994, Petitioner committed the offense of Criminal Mischief with Reckless Property Damage. Petitioner pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately thirty years and eight months old at the time of this offense. Respondent considered it to be significant that Petitioner was unable to provide information regarding non- disqualifying incidents3/ despite the fact that she had no control over New York City’s records retention policy. Mr. Lewis noted that it would have been to the benefit of Petitioner to have provided records of those non-disqualifying offenses since, without those records, Respondent could not fully review that information. In denying the exemption, Respondent considered the information in totality, including the non-disqualifying offenses committed from 1983 through 1994. Petitioner’s failure to provide a “detailed explanation” of those offenses was a factor in Respondent’s decision. Section 435.07(3)(b) plainly provides that: The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. (emphasis added). Considering evidence of non-disqualifying crimes committed prior to the disqualifying offenses exceeded the powers and duties granted by the Legislature. Thus, Respondent’s consideration of non-disqualifying offenses that occurred prior to the conviction for the disqualifying offenses was error. Evidence of Rehabilitation Petitioner’s last disqualifying offense occurred on January 23, 2002. Petitioner’s last involvement with law enforcement of any kind occurred in September 2002. Petitioner has no arrests or involvement with law enforcement of any kind since then. At some point, the passage of time itself is evidence of rehabilitation. While by no means dispositive, the passage of almost 14 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner showed contrition and remorse for the disqualifying offenses. Petitioner has been married since 2008 to a man that she describes as supportive. Thus, the stresses of the abusive relationships that led to her disqualifying offenses have been alleviated. Petitioner initially provided letters from six persons who were acquainted with Petitioner, two of whom testified at the final hearing. The letters were sincere, left the impression that they were written by persons with knowledge of Petitioner’s present character, and were consistent with and corroborated by the testimony of witnesses at the hearing. When Petitioner filed her Request for Administrative Hearing, she provided letters of support from four additional persons who knew Petitioner, one of whom testified at the final hearing. As with the previous letters, the letters were sincere, and fully consistent with the witness testimony taken during the hearing. Petitioner has been licensed as a certified nursing assistant, though the date of her licensure was not specified. She has not been able to practice under her license due to the issues that are the subject of this proceeding. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was when she was a drinker. Petitioner’s Work History The Employment History Record form that is part of the Request for Exemption requests “employment history for the last three years.” Petitioner provided an employment history that indicated employment from May 11, 2011, to the date of the filing of the Request for Exemption. During that period, Petitioner was employed to perform custodial duties at the First Baptist Church of Weeki Wachee Acres, and worked as a cook for functions held at the church. Her work ethic and performance was, and is, exemplary. In addition to the foregoing, Petitioner has attended to the needs of Billy Bowling on a volunteer basis for the past five or six years. Mr. Bowling, who is 49 years of age, is significantly developmentally disabled. At the hearing, he displayed obvious affection for Petitioner. Mr. Bowling’s mother, Patsy Bowling Anderson, testified that, at one time, the family employed a licensed direct service provider who was unacceptably rude, and upset Mr. Bowling. Since then, Petitioner is the only person outside of her family that Mrs. Anderson allows to care for Mr. Bowling. Mrs. Anderson testified that she had complete trust that Petitioner would do nothing that would result in harm to her son. Her testimony was substantiated by that of Major Anderson. The testimony of the Bowling/Anderson family was credible and compelling, and is accepted as convincing evidence of Petitioner’s rehabilitation. In addition to her care for Billy Bowling, Major Anderson and Mrs. Anderson testified that Petitioner, on her own time and without compensation, provides care and assistance to elderly neighbors, and to children at their church, all without incident. Their testimony is credited, and is accepted as further evidence of Petitioner’s rehabilitation. Additional Clear and Convincing Evidence of Rehabilitation Mr. Lewis testified that when disqualifying offenses involve violence, Respondent looks for evidence of anger management counseling. The information provided to the APD director suggested that Petitioner had undergone no anger management courses that would mitigate the possibility of a recurrence of the incidents that occurred in 1998 and 2002. The lack of such evidence was, in this case, a significant factor in the recommendation of denial to the director. Although the evidence of counseling in the Exemption Review file was spotty, the evidence adduced at hearing from Petitioner and Mrs. Anderson was convincing that Petitioner is an active, and successful, participant in Alcoholics Anonymous. Petitioner acts as a sponsor for others and on occasion, has taken it on herself to conduct meetings when group leaders have failed to appear. She has been sober for more than ten years. Since both of Petitioner’s disqualifying offenses were largely fueled by alcohol, ongoing participation in Alcoholics Anonymous is a more appropriate and effective means of rehabilitation than a class in “anger management.” Petitioner has been fortunate to find herself in what, by all accounts, is an embracing and supportive community. The individuals testifying on her behalf expressed their firm conviction that Petitioner had turned her life around, with Mrs. Anderson, who has known Petitioner for 14 years, characterizing the change as “remarkable.” None of the witnesses could identify any reason to suggest that Petitioner would not be able to provide capable and safe services to children and developmentally disabled persons. Ultimate Findings of Fact Petitioner meets the objective criteria for an exemption from disqualification established in section 435.07(1). When the decision was made to deny the exemption, it appears that APD staff provided the director with information as to non-disqualifying offenses that occurred prior to the disqualifying offenses. It is not known how, or whether, that impermissible information may have colored the director’s decision. Nonetheless, an evaluation of Petitioner’s suitability for an exemption should be made without consideration of those earlier events. The credible testimony and evidence in this case established, clearly and convincingly, that Petitioner has been rehabilitated from her disqualifying offenses, and that she currently presents no danger to the vulnerable population served by Respondent if she is allowed to be employed as a direct service provider. The concerns expressed by Respondent in formulating its intended action, without the benefit of the hearing testimony, particularly those regarding her lack of “anger management” classes and her lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities approving Petitioner, Catherine Schubert Rivera’s, request for an exemption from disqualification. DONE AND ENTERED this 10th day of November, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2015.
