The Issue Whether Petitioner is entitled to licensure as a Class "D" Security Officer.
Findings Of Fact Respondent is the agency of the State of Florida responsible for the administration of Chapter 493, Florida Statutes, including the licensure of Class "D" Security Officers. Petitioner applied for licensure as a Class "D" Security Officer. Pending the processing of that application, Petitioner became employed as a security guard for approximately five months. By letter dated February 21, 1996, Petitioner was notified by Respondent that his application for a Class "D" license was, subject to his due process rights, going to be denied based on his conviction of battery in St. Lucie County in September 1993. Respondent asserted that the conviction was of a crime directly related to the business for which the license is sought within the meaning of Section 493.6118(1)(c), Florida Statutes. Respondent also asserted that the facts relating to that conviction establish that Petitioner had committed an act of violence or used force on another person which was not for the lawful protection of himself or another within the meaning of Section 493.6118(1)(j), Florida Statutes. On September 14, 1993, Petitioner was convicted by a jury of a misdemeanor count of battery. The victim of the battery was Thomas Coburn. Petitioner was adjudicated guilty and sentenced to 15 days in the county jail, one year probation, and 50 hours of community service. At all times pertinent to this proceeding, Thomas Coburn was employed by the City of Port St. Lucie, Florida, as a city code enforcement officer. The code enforcement division is administered by the City of Port St. Lucie Police Department. Mr. Coburn was not a sworn law enforcement officer. On Sunday, May 16, 1993, Mr. Coburn was acting in his official capacity as a city code enforcement officer. He was wearing a badge, name plate, and collar pins with the initials P.S.L. He was in an official uniform that had patches with the inscription "Port St. Lucie, Fla. Police." He was driving a marked vehicle that reflected he was with the city code enforcement department. Shortly after noon on May 16, 1993, Mr. Coburn went to the personal residence of the Petitioner for the purpose of serving upon Petitioner a notice to appear pertaining to several alleged code violations. Petitioner was home with his wife, his teenage stepson, and his five year old son. When Mr. Coburn arrived, Petitioner was about to begin a barbecue. When the stepson came to the door in response to Mr. Coburn knock on the door, Mr. Coburn asked to speak to Petitioner. The teenage stepson went inside to get the Petitioner. Mr. Coburn did not see the stepson or another member of Petitioner's family after the Petitioner came to the door. When Petitioner came to the door, Mr. Coburn identified himself as a code enforcement officer and told Petitioner he was there to deliver the notice to appear. Mr. Coburn's vehicle was parked on the street so that Petitioner could see the markings on the vehicle. Petitioner became irate and shouted profanities at Mr. Coburn. Petitioner told Mr. Coburn that he could not serve official papers on a Sunday and ordered him off his property. There is a conflict in the evidence as to what next occurred. Petitioner testified that Mr. Coburn bumped him in the chest as the two of them argued. Mr. Coburn testified that he backed away from Petitioner and began to leave the premises. The more credible version of the events is that given by Mr. Coburn. Consequently, it is found that there was no physical contact initiated by Mr. Coburn. As he was backing away and preparing to leave the premises, Mr. Coburn placed the notice to appear on the barbecue grill that was in the area where the two men were standing. After he placed the notice to appear on the barbecue grill, Mr. Coburn turned to walk away. Petitioner then kicked Mr. Coburn in the buttocks. It was Petitioner's act of kicking Mr. Coburn that resulted in his subsequent arrest and conviction. There was no one else in the area around Petitioner's front door at the time of this incident. There was insufficient evidence to establish that Petitioner was acting in defense of himself or of others when he kicked Mr. Coburn. Petitioner has not been convicted of any other crime. At the times pertinent to this proceeding, Petitioner was an approved process server within the Nineteenth Judicial Circuit of Florida. Petitioner worked as a security guard for the five months preceding the denial of his application. There were no incidents of violence during that five month period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order deny Petitioner's application for a Class "D" license. DONE AND ENTERED this 11th day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996. COPIES FURNISHED: Michele Guy, Esquire Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Edward B. Galante, Esquire 789 South Federal Highway, No. 103 Stuart, Florida 34994 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue Has Mr. Aylwin demonstrated that he possesses the requirements of Section 493.306, Florida Statutes (1981) to be licensed as a security guard by the Department?
Findings Of Fact On March , 1981, Mr. Aylwin applied for a Class "D" and "G" Security Guard License from the Department. Question 13 of the application form submitted by Petitioner asked if he had ever been arrested. Mr. Aylwin checked the box marked "No." On May 5, 1981, the Department sent a letter to Mr. Aylwin which stated in part: Your application for the above referenced license has been denied pursuant to the Florida Statutes as cited, and facts stated, in the attachment (applicable portions of the statutes are indicated with an "X"). The items checked included: X Chapter 493.306(2)(b)(1) "There is a substantial connection between the lack of good moral character of the applicant and the business for which the license is sought." X Chapter 493.306(6)(b) "Demonstrate fitness to carry a firearm based upon a complete background investigation by the department of the individual's police record and general character. X Chapter 493.309(1)(c) "Such other investigation of individual as the department may deem necessary." Chapter 493.319: X (1)(a) "Fraud or w11lful misrepresentation in application for or in obtaining a license;" X (1)(c) "Having been found gu11ty of the commission of a crime which directly relates to the business for which the license is held, regardless of adjudication;" X (1)(j) "Commission of assault, battery, or kidnapping or use of force or violence on any person except in self-defense or in the defense of a client;" x (1)(p) "Violating any provision of this chapter." On September 4, 1971, Petitioner was convicted of assault and battery on a police officer in Fort Lauderdale, Florida. He was sentenced to a fine of $202 or thirty-three days in ja11. In 1976 Petitioner was arrested for driving while intoxicated. The charged was later reduced to reckless driving and he was convicted. Petitioner admits to a drinking problem and stated at the final hearing that his use of alcohol was part of the cause for his conviction for assault and battery and for the current loss of his driver's license for traffic violations. No credible evidence other than the lapse of time was presented to establish the rehab11itation of Petitioner from the effects of his assault and battery conviction. Petitioner's explanation of why he did not truthfully answer question #13 on his application is not accepted as credible. It is found that he w11lfully gave a false answer to question #13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of State, Division of Licensing enter a Final Order denying the application of Rudolph T. Aylwin for both a Class "G" and a Class "D" Security Guard License. DONE and RECOMMENDED this 24th day of August, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Bu11ding 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 F11ed with the Clerk of the Division of Administrative Hearings this 24th day of August,1982. COPIES FURNISHED: Rudolph T. Aylwin 321 C SE 11 Street Pompano Beach, Florida 33060 James V. Antista, Esquire Department of State Division of Licensing The Capitol Tallahassee, Florida 32301 George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Don Hazelton, Director Division of Licensing Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue is whether Petitioner’s application for a license from the Florida Real Estate Commission was properly denied.
Findings Of Fact Petitioner, his Background, and the Application Leroy L. Baines, Jr., was born on October 31, 1985. Currently 29 years old, he is employed with a financial services company. He serves on the board of a non-profit organization called Butterfly Foundation Group. The organization works with underprivileged and at-risk youth. He also works with J.J.’s Boxing Club and Global Village, both non-profit entities. In 2005, Mr. Baines pled no contest to a criminal traffic infraction: operating a motor vehicle without a valid license (“Criminal Traffic Infraction No. 1”). He was adjudicated guilty and sentenced. Respondent’s Ex. No. 1 at 00028. The following calendar year, 2006, Mr. Baines was convicted of driving while his license was cancelled, suspended, revoked, or he was disqualified from holding a license (“Criminal Traffic Infraction No. 2”). Id. at 00022. In 2008, in the U.S. District Court for the Southern District of Florida, Mr. Baines pled guilty and was adjudicated guilty of two federal crimes: 1) conspiracy to interfere with interstate commerce by robbery, and 2) carrying a firearm during and in relation to a crime of violence (the “Federal Criminal Offenses”). Id. at 00013. Mr. Baines was sentenced to 55 months imprisonment for the Federal Criminal Offenses on June 18, 2008. He served his sentence in prisons located in Florida, Texas, and North Carolina. His sentence expired on June 30, 2014, and he was discharged from supervision on September 3, 2014. Id. at 00040. On April 11, 2014, Respondent received Mr. Baines’ application for licensure as a real estate associate (the “Application”). He answered “Yes” to Background Question 1, which asks, “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction . . . ?” Id. at 00010. After the background questions in the Application, the Application states, “If you answered ‘YES’ to any question in [the background questions], please refer to Section IV of the Instructions for detailed instructions on providing complete explanations, including requirements for submitting supporting legal documents.” Id. In the Application’s “Section IV(b) – Explanation(s) for Background Question 1,” Petitioner listed the Federal Criminal Offenses. For one of the two offenses under “Penalty/Disposition,” he wrote “Time Served”; for the other, he wrote “55 months.” Id. Under “Description” as to each of the two Federal Criminal Offenses, Petitioner wrote, “5 years Supervised Release.” Id. Despite the Application’s detailed instructions that require criminal traffic infractions to be listed (“This question applies to any criminal violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses . . . .” Id.), Petitioner failed to list the two Criminal Traffic Infractions. Petitioner’s Case Mr. Baines testified that his application should be granted because he has cooperated with Respondent by providing everything that was asked of him during the Application review process. Although he had not included the Criminal Traffic Infractions on the written Application, he freely admitted during the hearing it was his responsibility at the time he made out the Application to report them and to offer any relevant explanation of them. With regard to the Criminal Traffic Infractions, Mr. Baines testified he spent 30 days in the Orange County Jail. He seeks leniency in this application process based on his age at the time of the offenses which he claimed, at first, was 16. Noting the difference between his birthday and 2005 and 2006, Mr. Baines conceded during cross-examination that he was several years older than 16 at the time of the Criminal Traffic Infractions. Mr. Baines elaborated on the Federal Criminal Offenses explaining that he had fallen in with former high school friends whom he had not seen for some time when they recruited him to drive the get-away car in a robbery. He stated that at the time of the crime he was in possession of two guns both of which he had been carrying legally prior to the crime: a nine millimeter Glock and a .40 caliber handgun. Mr. Baines’ time in prison was spent without any violations of prison rules, according to his testimony, and he completed the post-release program successfully. His success in serving his time is the basis, Mr. Baines asserted, for his release from federal supervision so promptly after the expiration of the sentence. No documentation of “good behavior” in prison, however, was offered at hearing. In an attempt to demonstrate rehabilitation, Mr. Baines referred to his service to the Butterfly Foundation, J.J.’s Boxing Club, and the other two non-profit organizations with which he works that serve at-risk youth in the Pompano and Fort Lauderdale areas. He also averred that he had been cleared by the Department of Children and Families (“DCF”) to work with underprivileged youth for cheerleading and gymnastics although he offered no supportive documentary evidence from DCF. Mr. Baines did submit to Respondent as part of his application three documents related to rehabilitation. The first extolled his work as an employee. The second was written by a teacher at Stranahan High School who is a fellow basketball player at pick-up games in a public basketball court in Plantation, Florida. The third was written by his pastor at the Living Waters Sanctuary in Oakland Park, Florida. The authors of the letters all write highly of Mr. Baines. In support of his case for rehabilitation, Mr. Baines testified that after his conviction for the Federal Criminal Offenses, he had had only one slip-up: a urinalysis (“UA”) positive for marijuana, a substance he had used as a youth. Mr. Baines claimed that the UA was conducted only because those supervising his post-release case sent him for the testing after Mr. Baines had voluntarily acknowledged his recent use of marijuana. But for the single marijuana incident, Mr. Baines asserted under oath that his record after his conviction, in prison and out of prison during a post-incarceration discharge period, had been spotless. His admirable conduct, he testified, is what led to the court to promptly release him from federal supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner’s application for licensure as a real estate sales associate. DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2015. COPIES FURNISHED: Leroy L. Baines, Jr. 4808 Northwest 8th Court Lauderhill, Florida 33317 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Profession Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Darla Furst, Chair Real Estate Commission Department of Business and Profession Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 (eServed)
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of August, 2006.
The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
Findings Of Fact At all material times, respondent has held a registered Class "B" Security Agency License, No. B86-00092, a Class "DS" Security Officer School/or Training Facility License, No. DS90-00069, a Class "D" Security Officer License, No. D85-2333, a Class "DI" Security Officer Instructor License, No. DI88-00012, and a Class "MB" Manager Security Agency License, No. MB86-00105. At all pertinent times, respondent provided security services to various non-governmental clients in Bay County, Florida, and also furnished security services to its only governmental client, the Federal Correctional Institution in Tallahassee, more than 100 miles from respondent's offices. From January 21, 1991, to June 30, 1991, respondent employed J. C. Barnwell, Terrell Barnwell, Larry Burks, Michael Dicks, Robert Pompey and Darrell L. Smith, none of whom held security officer licenses. They all worked as security officers at the Federal Correctional Institution in Leon County, and did no other work for respondent.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint. DONE and ENTERED this 1st day of July, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1992. COPIES FURNISHED: Henri C. Cawthon, Esquire The Capitol, MS #4 Tallahassee, FL 32399-0250 Charles S. Isler, III, Esquire Isler & Banks, P.A. P.O. Drawer 430 Panama City, FL 32402 Honorable Jim Smith, Secretary Department of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-2 Tallahassee, FL 32399-0250
The Issue The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified as fire fighters and fire safety inspectors. Respondent is certified in the state as a fire fighter and fire safety inspector. She is currently employed by Volusia County Fire Services as an Emergency Medical Technician. On or about October 16, 1980, Respondent was charged in circuit court with vehicular manslaughter and driving under the influence of alcohol. Vehicular manslaughter is a felony under Sections 860.01(1)and (2), Florida Statutes. 1/ Driving under the influence of alcohol is a misdemeanor under Section 316.193. On or about April 15, 1981, Respondent entered a plea of nolo contendere to the charge of "Manslaughter by Operation of a Motor Vehicle while Intoxicated or Deprived of Full Possession of Normal Faculties." The court withheld adjudication, placed Respondent on probation for two years, and restricted her driver's license to business purposes for the first three months of her probation. Respondent successfully completed her probation on April 15, 1983. On or about September 15, 1992, Respondent completed an application for certification as a fire fighter. The application asked, "Do you have a record of conviction of a felony or a misdemeanor?" Respondent answered, "No." Respondent did not answer the foregoing questions untruthfully. Respondent was advised by counsel that there had never been an adjudication of guilt and that she should state that she had never been convicted of the charges in 1981. On or about September 10, 1993, Respondent completed an application for certification as a fire safety inspector. The application asked, "Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude?" Respondent answered, "No." Respondent believed that she had never been convicted of such an offense because adjudication of guilt had been withheld, and she had successfully completed her probation. Petitioner certified Respondent as a fire fighter and as a fire safety inspector. Petitioner relied, in part, upon Respondent's answers to the questions quoted in the preceding paragraphs. Respondent did not intentionally misrepresent her criminal history to Petitioner on either application. Respondent relied on advice of counsel and a good faith belief in the truthfulness and correctness of her responses. Respondent is actively employed as a fire fighter. She is seeking certification as a fire safety inspector to further her career and to obtain employment closer to her residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of all of the charges in the Administrative Complaint except the charge of pleading nolo contendere to a felony within the meaning of Section 633.081(6)(d). It is further recommended that Petitioner enter a Final Order authorizing the issuance of a written reprimand. RECOMMENDED this 9th day of January, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 9th day of January, 1995.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and was at all times material to the instant case, the holder of a Class "D" security officer license (Number D93-17516) issued by the Department. McRoberts Protective Agency, Inc. (hereinafter referred to as "McRoberts") is an agency that offers security services. For approximately one year and eight months (and at all times material to the instant case), Respondent was employed as a security officer by McRoberts. He was assigned to service the Antillean Marine Shipping (hereinafter referred to as "Antillean") account. His supervisor was David Bowling. Antillean demanded that McRoberts supply security guards who spoke both English and Spanish. Respondent met this requirement, although he was not fluent in English. Respondent and all other McRoberts security officers assigned to the Antillean account were given written post orders which they were expected to obey. Respondent received his written post orders prior to April 22, 1995. These post orders included the following: Security officers are not permitted to sit in their personal vehicles during their shift. There will be NO SLEEPING on duty. Personnel found sleeping will be fired on the spot. Roving officer must make key rounds every hour. Please note: If the officer does not make rounds, he will not get paid for that time. (Important) The only thing we asked of you is to do the job you were hired for and the client will be satisfied and there will be no problems. NO SLEEPING ON POST !! Excuses will not be accepted. POST Number 1: Security officer will be responsible for front gate. All vehicles entering terminal after hours (unless management personnel) will be stopped to identify occupants. Visitors to vessels (unless visiting captain or officers) will be required to remain at front gate until crewman is located. Rover (Post Number 2) will locate crewman. On April 22, 1995, while on duty at Antillean (at Post Number 1), Respondent was sitting in his personal vehicle in violation of the post orders. Bowling observed Respondent in the vehicle and issued him a Notice of Failing Performance (which is essentially a written reprimand) for having committed this violation. The notice contained the following "comments" made by Bowling: S/O was on property in his car (laying down in the back seat). He told me that he has been doing this for a year. 1/ I told him that Morales 2/ does not allow it. He agreed w/me that he knows better. On May 26, 1995, Bowling again observed Respondent in Respondent's personal vehicle while Respondent was on duty at Antillean (at Post Number 1). This time Respondent had his eyes closed and was apparently asleep. Accordingly, Bowling issued Respondent another Notice of Failing Performance, which contained the following "comments" made by Bowling: I arrived at 0515. C. Figueroa was inside his car asleep at Post 1. In accordance with McRoberts' written policy, Respondent was docked four hours pay for having been asleep while on duty. Respondent was angry at Bowling for having issued him the Notice of Failing Performance that had resulted in this loss of pay. On June 9, 1995, when Bowling approached Respondent and asked him to sign a log sheet, Respondent vented his anger by yelling at Bowling. Respondent accused Bowling of taking food out of the mouths of Respondent's children. Respondent then threatened Bowling by telling Bowling that he would see Bowling "on the streets" and that Bowling was not "going to live much longer." 3/ While making these threats, Respondent came close to, but did not touch, Bowling. He had no intention of actually harming Bowling, but Bowling nonetheless reasonably feared for his safety. Another supervisor was called to the scene and escorted Respondent away. Bowling prepared and submitted a written report describing the incident. Respondent's employment with McRoberts was subsequently terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent committed the three violations of subsection (1)(f) of Section 493.6118, alleged in the Administrative Complaint, and (2) disciplining him for having committed these violations by suspending his license for a period of two months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1996.
