Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
Findings Of Fact 7. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on April 9, 2010, the Amended Order of Penalty Assessment issued on April 26, 2010, and the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction issued on January 6, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the Petition for Review, and the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction served in Division of Workers’ Compensation Case No. 10-152-1A, and being otherwise fully advised Order in the premises, hereby finds that: 1. On April 9, 2010, the Department issued a Stop-Work Order and Order of Penalty Assessment to MIKE CANADY, in case no. 10-152-1A. 2. On April 9, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on MIKE CANADY. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 26, 2010, the Department issued an Amended Order of Penalty Assessment to MIKE CANADY. The Amended Order of Penalty Assessment assessed a total penalty of $137,562.68 against MIKE CANADY. 4. On May 27, 2010, the Amended Order of Penalty Assessment was served via Process Server on MIKE CANADY. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On June 17, 2010, MIKE CANADY filed a request for Administrative Review (“Petition”), requesting review of the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment. The petition for administrative review was forwarded to the Division of Administrative Hearings on July 16, 2010, and the matter was assigned DOAH Case No. 10-5819. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On January 6, 2011, the Administrative Law Judge issued an Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction ruling that, “Accordingly, the facts stated in Petitioner’s First Request for Admissions are deemed to be true and the documents which are attached to the discovery requests are deemed to be genuine. That being the case, a dispute of material fact no longer exists.” A copy of the Order Cancelling Hearing, Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue Whether Petitioners committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times relevant to this proceeding, Petitioners Jerry J. Robinson and Charles Osz, were detention deputies employed by the Respondent, Everett S. Rice, Pinellas County Sheriff (Respondent), and assigned to the Pinellas County Jail (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioners were responsible for the care, custody, and control of persons held at the Jail. On January 30, 1998, Officer John Fitzgerald of the Largo Police Department took Duston Llano into custody and transported him to the Jail. Joseph Nichols, an Explorer Scout with the Largo Police Department, accompanied Officer Fitzgerald to the Jail. Mr. Llano was not under arrest since he had committed no crime but was taken into custody pursuant to the Marchman Act based upon his intoxicated condition. When he was taken into custody, Mr. Llano did not resist or threaten physical harm to the officers but did threaten to sue the officers. On January 30, 1998, Petitioners Robinson and Osz were assigned to the booking area of the Jail. Upon Mr. Llano's arriving at the Jail, Petitioners Robinson and Osz took possession of him in the pre-booking area. Shortly thereafter, Petitioners transported Mr. Llano to the post-booking section of the Jail and placed him in Cell 4. Mr. Llano was barely able to walk and was assisted by Petitioners Robinson and Osz to the post-booking area. Once in Cell 4, Petitioners began a pat-down search of Mr. Llano. Petitioner Robinson was to the left of Mr. Llano and Petitioner Osz was to Mr. Llano's right. During the search, a substance Petitioners believed might be crack cocaine was found on the person of Mr. Llano. After the suspicious substance was found on Mr. Llano, Detention Deputy Monte Esry requested that Detention Deputy Larry Potts summon Officer Fitzgerald and Mr. Nichols and ask them to remain at the Jail to possibly process the substance and effect an arrest of Mr. Llano. Detention Deputy Potts complied with Detention Deputy Esry's request and then accompanied Officer Fitzgerald and Mr. Nichols down the hall from the pre-booking area to Cell 4 of the post-booking area where Mr. Llano was being held. The substance found on Mr. Llano's person and believed to be contraband was found by Petitioner Osz who gave the substance to Petitioner Robinson. Petitioner Robinson then handed the substance to Detention Deputy Esry who handed it to Detention Deputy Potts who, then, handed it to Officer Fitzgerald for testing. Having found what they believed to be contraband, Petitioners Osz and Robinson began a strip search of Mr. Llano. When they arrived at Cell 4, Officer Fitzgerald stood near the doorway to the cell and Mr. Nichols remained in the hallway outside the cell. From Officer Fitzgerald's and Mr. Nichols' vantage point, it was possible for them to see into Cell 4. Both Officer Fitzgerald and Mr. Nichols observed Mr. Llano sitting on the bunk in the cell with Petitioner Robinson on his left and Petitioner Osz on his right. Mr. Llano was slumped over and again made reference to suing everyone. However, Mr. Llano took no action to resist or otherwise justify the use of force. In an apparent response to Mr. Llano's threat to sue, Petitioner Osz grabbed Mr. Llano by his hair, straightened him up and slapped him on the face or head at least twice. While Petitioner Osz was slapping Mr. Llano, he said something to the effect of "how about another thousand" or "there is another thousand." From his vantage point in the hall, not more than 15 feet away, Mr. Nichols saw Petitioner Osz slap Mr. Llano and heard the comments by Petitioner Osz. Officer Fitzgerald, who was at the doorway of Cell 4, approximately nine feet, also saw the slapping incident and heard the comments made by Petitioner Osz. During the course of the slapping incident, Detention Deputy Potts was also in Cell 4. Nonetheless, he testified that he did not see Petitioner Osz slap Mr. Llano. When Petitioner Osz slapped Mr. Llano, Petitioner Robinson was in Cell 4 and within five or six feet of Petitioner Osz and Mr. Llano. However, at the time of the incident, Petitioner Robinson was preoccupied with depositing items obtained from Mr. Llano's person into a property bag that was on a steel table in the cell and did not see Petitioner Osz slap Mr. Llano. Also, because the Jail was very busy and loud on this evening, Petitioner Robinson did not hear Petitioner Osz slap Mr. Llano. Because Petitioner Robinson did not observe the incident, he did not respond to or report Petitioner Osz' actions toward Mr. Llano. Neither Officer Fitzgerald nor Mr. Nichols observed Petitioner Robinson during the slapping incident and could not testify as to where he was looking when the incident occurred. After the slapping incident, Officer Fitzgerald and Mr. Nichols then left the area of Cell 4 in order to conduct a test of the substance found in Mr. Llano's pants pocket. As a result of the test performed by Officer Fitzgerald, it was determined that the substance was not illegal. After conducting the presumptive test, Officer Fitzgerald and Mr. Nichols left the Jail. Officer Fitzgerald and Mr. Nichols subsequently reported the slapping incident to their supervisors and prepared reports memorializing the events they observed. A representative of the City of Largo Police Department then reported the incident to the Respondent, who initiated an investigation by the Pinellas County Sheriff's Office, Inspections Bureau, Administrative Inquiry Division. As a part of the investigation regarding the conduct in question, sworn statements were taken from Officer Fitzgerald, Mr. Nichols, Detention Deputy Potts, Detention Deputy Esry and Petitioners Osz and Robinson. Attempts to speak with Mr. Llano were fruitless based upon his lack of recollection of the incident. During the course of his sworn statement, Petitioner Robinson stated that he did not see Petitioner Osz slap Mr. Llano. Detention Deputy Potts, who was also in Cell 4 during the incident, also stated in his sworn statement that he did not observe Petitioner Osz slap Mr. Llano. During his sworn statement, Petitioner Osz denied that he ever struck Mr. Llano. After completing its investigation, the Administrative Inquiry Division presented its entire investigative file to the Chain of Command Board without conclusion or recommendation. The Chain of Command Board met and after reviewing the materials provided by the Administrative Inquiry Division and giving Petitioners the opportunity to respond further, the complaints against Petitioners were sustained. Specifically, the violations determined to have occurred as to Petitioner Osz were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, A (Level Five Violation), 021, relating to custody of arrestees/prisoners; Violation of PCSO Rule C1, V, C (Level Three Violation), 060, relating to standard of conduct. Under the PCSO Guidelines, a sustained finding of two Level Five violations and one Level Three violation is the basis for assigning 115 disciplinary points. As a result, Petitioner Osz was assessed 115 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 115 points to be a minimum discipline of a 15-day suspension and a maximum discipline termination. In the instant case, the discipline imposed against Petitioner Osz was termination. Specifically, the violations determined to have occurred as to Petitioner Robinson were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, B (Level Four violation), 037, relating to reporting violations of laws, ordinances, rules or orders. Under the PCSO Guidelines, a sustained finding of one Level Five violation and one Level Four violation is the basis for assigning 80 disciplinary points. As a result, in the instant case, Petitioner Robinson was assessed 80 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 80 points to be a minimum discipline of a 10-day suspension and a maximum discipline of termination. In the instant case, the discipline imposed against Petitioner Robinson was termination. The conduct engaged in by Petitioner Osz in slapping Mr. Llano was unnecessary, excessive, did not constitute a good correction practice and is not consistent with the training or conduct expected of correctional officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the PCSO enter a Final Order: 1) finding Petitioner Osz guilty of the conduct alleged in the charging document; (2) upholding the termination of Petitioner Osz' employment as a detention deputy with the PCSO; (3) dismissing the charges against Petitioner Robinson; and, (4) reinstating Petitioner Robinson as a detention deputy with the PCSO. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 January, 1999. COPIES FURNISHED: William M. LauBach, Esquire Executive Director Pinellas County Police Benevolent Association 3737 16th Street, North St. Petersburg, Florida 33704 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Charles Osz, pro se 2545 Coachman Road Northeast Number 127 Clearwater, Florida 33765 Keith Tischler, Esquire Power, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
Findings Of Fact James W. Collins was suspended without pay for thirty (30) days effective February 9, 1976, having been charged with conduct unbecoming a public employee and willful violation of rules, regulations, directives or policy statements governing behavior of employees of the Department of Offender Rehabilitation and Sumter Correctional Institution. Specifically, he was charged with being intoxicated on institutional grounds and creating a disturbance by profane and abusive language directed toward other employees, loud and repeated knocking on the doors of other employees' rooms in the Bachelor Officer's Quarters during the night of February 5, 1976, and the early morning hours of February 6, 1976. Petitioner denied that he was intoxicated and requested an administrative hearing. Petitioner James W. Collins lived in the Bachelor Officer's Quarters of Sumter Correctional Institution of the State of Florida in the month of February, 1976. Beer was available and allowed after working hours and employees were allowed to consume beer and other refreshments after working hours. The Petitioner consumed approximately three (3) beers after five o'clock on February 5, 1976. He went to his room after 8:00 P.M. and later knocked on the doors of various persons who were also employed by the Department of Offender Rehabilitation and who lived in the Bachelor Officer's Quarters. He then went to the Administration Building. He appeared in an unstable condition and returned again to the BOQ Building and knocked on the door of a fellow employee asking for change. Later, in the early morning hours of February 6 about 2:30 A.M., Collins again left his room and was making noise either emptying trash or rummaging through the trash cans in the parking lot where he again met the officer in charge. Petitioner had consumed beer on the night in question after hours which was allowed by the institution. The fact that he knocked on the doors of various other persons, entered the lounge area in the Administration Building and later was in the parking lot emptying trash or rummaging through the cans is not conclusive that the Petitioner was in fact intoxicated even though alcohol or beer odor could be detected on his person. The Petitioner is a diabetic and his actions were consistent on the night in question with one who is suffering from this disease or one who is intoxicated. His contention that he was seeking change from his friends to use in a drink or candy machine or to acquire sugar to relieve him from his diabetic condition is consistent with the actions of a person seeking relief from the effect of the disease. There is no proof that the Petitioner James Collins was in fact intoxicated. The fact that Petitioner suffered diabetes and accepted employment in a sensitive area like the Sumter Correctional Institution should require him to protect his employment and his physical condition and refrain from the use of alcohol. He should keep within his quarters a sufficient amount of treatment such as sweets for his condition and keep sufficient change on hand in order not to burden others with his deficiencies. The failure to protect himself against his actions which resulted in the disturbing of a number of employees during the night in question shows the Petitioner to be remiss in his obligation toward his job, himself and others. A certified letter with return receipt requested was addressed and sent to the Petitioner Collins at his abode in the Sumter Correctional Institution's BOQ, Room 312, Bushnell, Florida 33513. The letter of suspension was sent pursuant to Rule 22A-1.05, Florida Administrative Code. Petitioner had been orally informed of his suspension and the time of his suspension and the length of it at the meeting with his superintendent. The fact that the certified letter was sent to a mailbox in Bushnell which merely put into writing information the Petitioner already had did not deprive him of any of his rights. It was the mailbox at which Petitioner received his mail and the fact that the institution has his Tallahassee address did not require it to send his letter of suspension, about the facts of which he was fully informed, to the Tallahassee address.
Recommendation Withdraw the penalty of suspension without pay and substitute a written reprimand. DONE and ORDERED this 11th day of April1 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Raymond W. Gearey, Esquire Room 300, Building 5 1311 Winewood Boulevard Tallahassee, Florida 32301 Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF JAMES COLLINS DOAH NO. 76-2050 DOCKET NO. 76-56 AGAINST SUSPENSION BY THE DEPARTMENT OF OFFENDER REHABILITATION / OPINION AND ORDER Chairman Catherine W. Chapin and Members Clare C. Leiby and Edwin G. Fraser participating. This cause came on to be heard by the Career Service Commission on May 11, 1977, in Tallahassee, Florida. The Commission has considered the Recommended Order by Hearing Officer Delphene C. Strickland and the record of this appeal. The Commission hereby accepts, adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order, dated April 11, 1977. The Commission must reject, however, the Conclusion of Law and Recommended Penalty and submits the following conclusions. While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency's charge of conduct unbecoming a public employee. The Hearing Officer concluded that the Petitioner was guilty of this general charge, based on the evidence brought out at the hearing, and recommended altering the suspension to a written reprimand. Inasmuch as the designated Hearing Officer is vested only with such authority as the Commission possesses, the Hearing Officer's recommendation to alter the penalty is impermissible. The Agency's disciplinary action of a 30-day suspension being within its authority was supported by the evidence and as set forth in the Hearing Officer's Findings of Fact. Wherefore, it is ORDERED that the action of the Agency be, and the same is, hereby sustained. It is further ORDERED that the Motion for Reconsideration having been considered, the same is hereby denied. DONE AND ORDERED this 10th day of June, A.D., 1977. CATHERINE W. CHAPIN, Chairman Career Service Commission CERTIFICATE OF SERVICE I hereby certify that copy of the foregoing Order was furnished by certified U.S. mail, return receipt requested, to Mr. Jerry G. Traynham, Attorney at Law, 1215 Thomasville Road, Tallahassee, Florida 32303, and Mr. Raymond Gearey, General Counsel, Department of Offender Rehabilitation, 1311 Winewood Boulevard, Tallahassee, Florida 32301, and by regular U.S. mail to Mrs. Delphene C. Strickland, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 23rd day of June, A.D., 1977. CAREER SERVICE COMMISSION BY: Susan Turnbull
The Issue Whether Petitioner violated Rules and Regulations of the Pinellas County Sheriff’s Office, 3-1.1(002), 3-1.3(066), and 3-1.3(067), and, if so, whether Petitioner should be terminated from his position with the Pinellas County Sheriff’s Office.
Findings Of Fact Based on a review of the case file, the Transcript of the final hearing, and the exhibits entered into evidence, the following Findings of Fact are found. On July 13, 2001, Dominguez was assigned to foot patrol at the K-Mart store in South Pasadena, Florida, as a community police officer. At that time he had been employed by the Pinellas County Sheriff’s Office for approximately sixteen and one-half years. On the evening of July 13, 2001, Dominguez was standing outside K-Mart talking to an employee of K-Mart, Renee Herrington (Herrington). While talking to Herrington, Dominguez observed a white van and a black sport utility vehicle (SUV) parked in front of K-Mart next to a yellow curb. The area in which the vehicles were parked was marked by a faded “no Dominguez observed the vehicles for a time and when no one moved the vehicles, he decided to cite both vehicles for parking violations. He issued a citation to the white van and then proceeded to the black SUV. The SUV had been parked in front of K-Mart by Maryellen Ruvolo (Ruvolo) while she and her niece went into K-Mart to make a purchase. Ruvolo left the vehicle running, and her sister and two nephews remained in the vehicle. Dominguez went to the rear of the SUV and began writing the ticket. Ruvolo’s sister, Eugenia Quinn (Quinn), got out of the SUV and asked Dominguez to not issue the ticket and allow her to move the vehicle. Dominguez refused her requests and gave the ticket to Quinn. Dominguez started walking in the direction of Herrington, who was sitting on a bench approximately 30 yards away from the vehicles. When Ruvolo returned to the vehicle, Quinn gave her the ticket and told her that Dominguez would not let her move the SUV. Ruvolo turned in the direction of Dominguez and shouted, “Have a nice day, you fucking fat bastard.” Dominguez turned around and went back to where Ruvolo was standing. He wanted to confront her about her comment. Ruvulo started to yell after Dominguez went up to her. He arrested her, handcuffed her, and put her in his patrol car. The charge was disorderly conduct. During the confrontation between Dominguez and Ruvolo, none of the members of the public became involved in the dispute and Ruvolo did not incite any members of the public to participate in the dispute. She never physically or verbally threatened Dominguez. Ruvolo’s actions did not invade the right of others to pursue their lawful activities. Herrington went back inside K-Mart and other members of the public were not disrupted in their entering and leaving K-Mart. Quinn asked Dominquez why he was arresting her sister and he told her that he did not get paid enough to put up with what Ruvolo had said. While he was arresting Ruvolo, Dominguez had requested assistance from another deputy sheriff, Kelvin Franklin. When Deputy Franklin arrived on the scene the confrontation was over. Dominguez asked Franklin to go inside K-Mart and get the address of Herrington, who had witnessed the incident. Dominguez did not request Franklin to take a statement from Herrington. On the way to the jail, Ruvolo apologized to Dominguez, and he told her to shut up. Prior to reaching the jail, Ruvolo stopped for a few minutes in a parking lot and met with his supervisor to get some in-service papers. When they reached the jail, Dominguez was advised that there were six persons to be processed ahead of Ruvolo. Dominguez got out of the patrol car and turned off the ignition. He did some paperwork on the trunk of his patrol car while waiting. He left Ruvolo in the patrol car without air conditioning and the windows rolled up for approximately six or seven minutes. He returned to the vehicle and turned on the ignition and waited to be called to take Ruvolo inside the jailhouse. They waited approximately 20 minutes from the time they got to the jail until they entered it. Ruvolo spent approximately five hours in jail and was required to post bail before she could be released. After arresting Ruvolo, Dominguez prepared his incident/offense report and complaint/arrest affidavit. Dominguez admitted during his testimony that neither the arrest report nor the arrest affidavit set forth facts to establish the elements for the offense of disorderly conduct, the crime for which he arrested Ruvolo. Dominguez told the Administrative Review Board (ARB) that he felt that Herrington’s peace had been disturbed. Dominguez did not talk with Herrington between the time he heard Ruvolo make her remarks to him and the time he arrested Ruvolo. When asked why he had not included any statements from Herrington in his report, he replied, “Laziness.” During the ARB hearing, Dominguez stated that he had no excuse for not completing a thorough report and detailing the elements of the crime. He acknowledged the position that he placed the Sheriff's Office in when he did not do a complete and thorough report. Ruvolo and Quinn made complaints to the Pinellas County Sheriff’s Office about Dominguez’s actions. The complaints alleged that Dominguez was rude, intimidating, and unprofessional in his behavior during the July 13, 2001, incident. Ruvolo also alleged her arrest to be false. As a result of the complaints, Sergeant Tim Pelella (Pelella) of the Administrative Investigations Division of the Pinellas County Sheriff’s Office conducted preliminary interviews of Ruvolo and Quinn. During the course of the interview, Ruvolo recognized that she would have to pursue her false arrest claim through the courts. Pellella referred the matter to the commander of the road patrol division for investigation of the non-arrest components of the complaints. The complaints were referred to Sergeant Jay Morey (Morey), Dominguez’s immediate supervisor. Sergeant Morey talked to Dominguez and Herrington, but did not talk to either Ruvolo or Quinn. Morey concluded that he would not sustain the complaint, but his conclusion was never finalized or reduced to writing. The arrest for disorderly conduct was referred to the State Attorney’s Office for prosecution. The arrest report and arrest affidavit were reviewed by Assistant State Attorney Lydia Wardell, who concluded that neither the report nor the affidavit set forth sufficient facts to prosecute the case. As a result, a No Information was filed by the State Attorney’s Office disposing of the charges against Ruvolo, stating: “The facts and circumstances revealed do not warrant prosecution at this time.” As a result of the decision not to prosecute, the Administrative Investigation Division of the Sheriff’s Office retrieved the complaints from Morey and began its investigation of the false arrest complaint. It is the policy of the Sheriff’s Office not to investigate allegations of false arrest until such time as the State Attorney’s Office makes a decision on whether to prosecute. Dominguez was notified that an investigation was being initiated. Dominguez gave a sworn statement to the investigators assigned to the case. Ruvolo and other witnesses also gave sworn statements. After the investigation was completed, Dominguez was given an ARB hearing. In accord with General Order 10-2 of the Sheriff’s Office, at least one member of Dominguez’s chain of command sat on his ARB hearing. Prior to the hearing, the ARB members are given a copy of the investigation conducted by the Administrative Investigation Division. At the hearing Dominguez was permitted to offer a statement, to respond to questions, and to present additional evidence. The ARB made the following determination: On July 13, 2001, Manuel Dominguez, #52303, while on duty in Pinellas County, Florida; did violate the Pinellas County Sheriff's Civil Service Act Laws of Florida, 89-404 as amended by Laws of Florida 90-395, Section 6, Subsection 4, by violations of the provisions of law or the rules, regulations and operating procedures of the Office of the Sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.1 (Level Five Violation), 002, relating to Loyalty, to wit: Members shall maintain their loyalty to the Sheriff's Office and it's [sic] members as is consistent with law and professional ethics as established in General Order 3-2. Synopsis: On July 13, 2001, you failed to abide by the PCSO Code of Ethics, to wit: You acted officiously or permitted personal feelings, prejudices, animosities or friendships to influence your decisions while in the performance of duty as a deputy sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 066, relating to Performance of Duty, to wit: All members will be efficient in their assigned duties. Synopsis: On July 13, 2001, you failed to accurately document an incident that resulted in the arrest of a citizen of this county. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 067, relating to Performance of Duty, to wit: All members will be effective in their assigned duties. Synopsis: On July 13, 2001, you effected an arrest which the State Attorney's Office could not prosecute because you were ineffective in your assigned duties. The violations resulted in a cumulative point total of 75 points. A Level Five violation is given a point value of 50 points. A Level Three violation is given a point value of 15 points. The ARB assigned a total of 25 points for the two Level Three violations and 50 points for the Level 5 violation. There were no previous discipline points added. The discipline range for 75 points is from a ten-day suspension to termination. The ARB recommended the maximum penalty of termination. General Order 10-2 of the Pinellas County Sheriff’s Office deals with disciplinary procedures. It provides that the termination procedure to be followed is the same as that of a member who is suspended without pay with certain additional procedures. Only the sheriff has the authority to terminate a member of the Sheriff’s Office. A member can only be terminated “subsequent to an Administrative Investigation Division investigation supported by findings and disciplinary action recommended by a Administrative Review Board, and at the instruction of the Sheriff” that the member be terminated. At the time that the ARB made its recommendation that Dominguez be terminated, Rice, the Pinellas County Sheriff, was out of the state. He had discussed Dominguez’s disciplinary case with Chief Deputy Coats (Coats) prior to leaving the state. Rice had specifically authorized Coats to impose discipline, including termination, upon Dominguez that was consistent with the ARB’s recommendations. Coats advised Rice of the findings and recommendations of the ARB. Rice told Coats that he had no problem with terminating Dominguez. Coats signed the inter- office memoranda for Rice, advising Dominquez of the findings and recommendations of the ARB and advising of the decision to terminate Dominguez from employment with the Sheriff's Office. Coats was instructed by Rice to terminate Dominguez. In his deposition, Rice stated that Dominguez should have been terminated and that it was his decision to approve Dominguez's termination. Dominguez did not know the elements of the offense of disorderly conduct when he arrested Ruvolo. He felt that he could arrest her for her inappropriate comments to him. At the final hearing, Dominguez admitted that based on his long career in law enforcement that he should have known what constituted disorderly conduct. Dominguez was insulted by Ruvolo's name-calling and felt that her words were a challenge to the uniform of a deputy sheriff. Dominguez allowed his personal feelings to influence his decision to arrest Ruvolo.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a Final Order finding Manuel R. Dominguez guilty of violating the Rules and Regulations of the Pinellas County Sheriff's Office as set forth in September 27, 2001, inter-office memorandum and upholding the termination of Manuel R. Dominguez from his employment as a deputy sheriff with the Pinellas County Sheriff's Office. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. _ SUSAN B. KIRKLAND 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 1st day of April, 2002. COPIES FURNISHED: William M. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North Suite 115 Clearwater, Florida 33762 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on June 14, 2008, the Amended Order of Penalty Assessment issued on July 21, 2008, and the Second Amended Order of Penalty Assessment issued on August 20, 2008, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order for Specific Worksite Only and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-185-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On July 14, 2008, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 08-185-D1 to F. PALHANO CONSTRUCTION CORPORATION (hereinafter “F. PALHANO”.). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On July 14, 2008, the Stop-Work Order and Order of Penalty Assessment was served by personal service on F. PALHANO. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3, On July 21, 2008, the Department issued an Amended Order of Penalty Assessment in Case No. 08-185-D1 to F. PALHANO. The Amended Order of Penalty Assessment assessed a total penalty of $24,758.10 against F. PALHANO. The Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in _ accordance with Sections 120.569 and 120.57, Florida Statutes. 4, On August 11, 2008, the Amended Order of Penalty Assessment was served on F. PALHANO by personal service. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On August 13, 2008, F. PALHANO filed a petition for administrative review with the Department. . | 6. On August 20, 2008, the Department issued a Second Amended Order of Penalty Assessment 1 in Case No. 08- 185-D1 to F. PALHANO. The Second Amended Order of Penalty Assessment assessed a total penalty of $25,846.54 against F. PALHANO. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein F. PALHANO was advised that . any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, F lorida Statutes. 7. On August 21, 2008, the Second Amended Order of Penalty Assessment was served on F. PALHANO. by personal service. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 8. On August 26, 2008, the employer entered into a Payment Agreement Schedule for Periodic Payment of Penalty, in which the employer agreed to pay its penalty to the Department in set installments. The employer was granted an Order of Conditional Release From Stop-Work Order, which notified the employer that should the employer become delinquent on the Payment Agreement Schedule for Periodic Payment of Penalty, the Stop-Work Order would be reinstated. 9. The petition for administrative review was forwarded to the Division of Administrative Hearings on September 5, 2008, and the matter was assigned DOAH Case No. 08- 4396. 10. On February 5, 2009, the Administrative Law Judge issued an Order Granting Continuance, requiring the parties to advise the Administrative Law Judge of the case’s status no later than February 13, 2009. 11. The parties did not advise the Administrative Law Judge of the case’s status on or before February 13, 2009. On March 5, 2009, the Administrative Law Judge issued an Order Closing File, dismissing the case and closing its file at the Division of Administrative Hearings. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference. 12. On June 3, 2009, the Department reinstated the Stop-Work Order issued to F. PALHANO for failure to make timely payments on the Payment Agreement Schedule for Periodic Payment of Penalty. The last payment made by F. PALHANO was on January 5, 2009, leaving an outstanding balance of $21,696.78. 13. On July 27, 2009, F. PALHANO filed a Notice of Voluntary Dismissal of Petition for Formal Hearing with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal of Petition for Formal Hearing is attached hereto as “Exhibit E” and incorporated herein by reference.
Findings Of Fact 13. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 11, 2009, the Amended Order of Penalty Assessment issued on March 5, 2009, the 2"4 Amended Order of Penalty Assessment issued on March 11, 2009 and the 3 Amended Order of Penalty Assessment issued on October 30, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief F inancial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-036-D1, and being otherwise fully advised in the premises, hereby finds that: 1. On February 11, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-036-D1 to BEST WELDING AND FABRICATION, INC. 2. On February 11, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on BEST WELDING AND FABRICATION, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 5, 2009, the Department issued an Amended Order of Penalty Assessment in Case No. 09-036-D1 to BEST WELDING AND FABRICATION, INC. The Amended Order of Penalty Assessment assessed a total penalty of $196,980.30 against BEST WELDING AND FABRICATION, INC. 4. On March 16, 2009, the Amended Order of Penalty Assessment was served by certified mail on BEST WELDING AND FABRICATION, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 11, 2009, the Department issued a 2°4 Amended Order of Penalty Assessment in Case No. 09-036-D1 to BEST WELDING AND FABRICATION, INC. The an Amended Order of Penalty Assessment assessed a total penalty of $50,968.94 against BEST WELDING AND FABRICATION, INC. . 6. On March 26, 2009, the 2°4 Amended Order of Penalty Assessment was served by certified mail on BEST WELDING AND FABRICATION, INC. A copy of the 2"! Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. The Employer requested a formal hearing on April 6, 2009. A copy of the Request for Hearing is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On April 21, 2009, the request for formal hearing was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge. The matter was assigned to Administrative Law Judge Barbara Staros and given case number 09-2138. 9. On October 30, 2009, the Department issued a 3rd Amended Order of Penalty Assessment in Case No. 09-036-D1 to BEST WELDING AND FABRICATION, INC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $10,179.61 against BEST WELDING AND FABRICATION, INC. 10. On October 30, 2009, the 3™ Amended Order of Penalty Assessment was served on legal counsel for BEST WELDING AND FABRICATION, INC. A copy of the 3" Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 11. On November 9, 2009, BEST WELDING AND FABRICATION, INC. filed a Notice of Voluntary Dismissal. A copy of the Notice of Voluntary Dismissal is attached hereto as “Exhibit F” and incorporated herein by reference. 12. On November 12, 2009, an Order Closing File was entered. The Order Closing File relinquished jurisdiction to the Department. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
