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 Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether respondent's certification as a correctional officer should be revoked for having pled nolo contendere to a felony.
Findings Of Fact Respondent, Leland M. Large (Large), was certified by petitioner, Criminal Justice Standards and Training Commission (Commission), on July 1, 1974, and was issued certificate number A-2364. Currently, Large is employed as a correctional officer by Metropolitan Dade County, Department of Corrections and Rehabilitation (County), and has been so employed for 16 years. On October 15, 1985, Large entered a plea of nolo contendere to the felony offense of arson, Section 806.01, Florida Statutes, before the Circuit Court, in and for the Eleventh Judicial Circuit of Florida. The court accepted the plea, withheld an adjudication of guilt, and placed Large on a 12-month period of probation. On May 15, 1986, the court granted a motion for early termination of Large's probation. Regarding the crime with which he was charged, the proof demonstrates that in September 1985, Large owned a Toyota Corolla automobile which, because of an accident, was not road worthy. At that time, Large did not have the money to repair the car, was unable to sell it, and was having problems maintaining the payments on the vehicle. Accordingly, to relieve himself from the car payments, Large took the car to a secluded location and burned it. At hearing, Large testified that although he did take the car to a secluded location with the intention of burning it, and in furtherance of such intent smashed a window in the car and poured gasoline at its rear, that the actual burning of the car was an accident. According to Large, after having poured gasoline at the rear of the car, "I got disgusted with myself and I was going to change my mind and I threw a cigarette down and that is what started the fire." Large's testimony that the burning of the car was accidental is not credited, and it is found that he did intentionally burn the subject vehicle to relieve himself of the obligation to make further payments on it. To mitigate the gravamen of his offense, Large offered proof at hearing that at the time he burned the car he was an alcoholic who was not fully cognizant of his actions, but has since recovered. Regarding his rehabilitation, the proof demonstrates that following the entry of his plea of nolo contendere to the crime of arson, Large was suspended by the County for 28 days. During this period, Large was an inpatient at an alcohol rehabilitation center and successfully completed the program. Since such time, Large has remained sober and current in his financial obligations. To date, Large, who is currently 38 years of age, has been employed by the County as a correctional officer for 16 years, and his annual evaluations have ranged from satisfactory to outstanding. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair, respectful of the rights of others, and otherwise of good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which revokes the certification of respondent, Leland M. Large. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of July 1989. WILLIAM J. KENDRICK 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 17th day of July, 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Respondent's proposed findings of fact are addressed as follows: 1-4. Addressed in paragraphs 1 and 6 to the extent pertinent. 5. Addressed in paragraph 5. 6-13 and 15-39. These proposed findings are not relevant to the disposition of this case, but have been addressed in paragraphs 3-5 so that respondent's position could at least be depicted. 14. Addressed in paragraph 2, otherwise rejected as not shown to be relevant. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10630 N.W. 25th Street Miami, Florida 33172 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Daryl McLaughlin Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent Elias Zarate-Rizo has held license no. 64- 000448, a series 2-COP license issued by the Division of Alcoholic Beverages and Tobacco in the Department of Business and Professional Regulation, continuously since April 27, 1993. At all times relevant to this proceeding, respondent has been the holder of the license. The licensed premises is located at 103-105 North Summit Street, Crescent City, Putnam County, Florida. Divided primarily into a restaurant and a pool hall, the business is known as Jalisco's Corner. Lieutenant Mark I. McIntyre is second-in-command under the Chief of Police for the Crescent City Police Department and has been the police department's patrol supervisor since 1989. While on patrol during the early morning hours of July 16, 1993, Lieutenant McIntyre noticed lights on in Jalisco's Corner. He parked his car at approximately 2:30 a.m. to observe the licensed premises because under a local ordinance it is not permitted to serve alcoholic beverages or even to be open for business after 2 o'clock in the morning. From 50 feet away, through a large plate glass window providing an unobstructed view of the well-lighted pool hall, the lieutenant counted 14 people present, some of whom appeared to be drinking: respondent, Juan Franco, known to him to be an employee of Jalisco's Corner, and 12 customers. Respondent was leaning up against the bar drinking a Miller Lite beer. The beer on the premises is stored in ice coolers in the restaurant. Lt. McIntyre saw Franco walk from the pool hall into the restaurant and return shortly with a tray of what appeared to be six beer bottles. Franco placed the tray down and opened the bottles. Lt. McIntyre exited the patrol car and moved to the double doors of the pool hall only to find them chain-locked. Through the plate glass window, the officer motioned to respondent, who, with the Miller Lite in hand, admitted him onto the premises. Informed that he was serving alcoholic beverages after hours, Zarate- Rizo answered that Juan Franco did not work for him, therefore, he bore no responsibility for Franco's actions. When confronted with the officer's knowledge that Franco was, indeed, an employee, as evidenced by the order pad sticking from his back pocket, respondent admitted serving alcoholic beverages after hours, expressed regret and said it would never happen again. Lieutenant McIntyre proceeded to close down Jalisco's Corner for the evening. In the process of doing so, he came into firsthand contact with the six bottles he had seen Franco serving. They were still cold to the touch, foaming, and in the officer's opinion, were beer. Twelve days later, July 28, 1993, Lieutenant McIntyre, on patrol again, was driving by Jalisco's Corner at 2:11 a.m. As he approached he saw a red Ford pickup truck backing out of the parking lot. An Hispanic-looking male, later identified as Felix Carbajal, was pointing a handgun at the truck and making motions as if he were firing the gun. Respondent, together with his wife and baby, were in the parking lot. The officer advised dispatch of the situation and that he would attempt to intervene. With his own gun drawn, Lieutenant McIntyre approached Carbajal and ordered him to drop the weapon. Carbajal did not comply. He continued to point his firearm at the truck and its driver. Again, Lieutenant McIntyre ordered Carbajal to drop the gun. By now, a crowd had gathered. Carbajal turned, faced Lieutenant McIntyre, and pointed the gun at him. Staring down the barrel of the gun, the lieutenant clearly recognized it as an automatic or semiautomatic weapon of approximately 9 mm calibre with an extended magazine clip. Despite any impulse to protect himself, Lieutenant McIntyre rejected the idea of shooting Carbajal for fear of injuring children in the crowd. He continued to address Carbajal until Carbajal placed the gun on the ground. As he gave further instruction to Carbajal, a child ran from the crowd, picked up the gun and ran into Jalisco's Corner. Throughout the confrontation with Carbajal, respondent was in the parking lot with his wife and another child. Shortly after the first child ran into the restaurant with the gun used by Carbajal, respondent, with several others, followed the child into the restaurant, closed the door and locked it. Backup officers arrived. As Lieutenant McIntyre placed Carbajal under arrest, Officer West attempted entrance into Jalisco's Corner through a back door. The back door was also locked. Watching the door, Officer West saw a person stepped out. When Officer West made his presence known, the person reentered and re-locked the door. More backup officers arrived. Telephone calls were placed by the officers into the restaurant for the purpose of getting the occupants out and gaining admission of law enforcement personnel. Each time a phone call was made, Lieutenant McIntyre observed respondent through the plate glass window answering the phone. The officers told respondent he and the others should come out with hands up. Neither respondent nor the others did so, nor did respondent allow the officers entry. By now, seven law enforcement vehicles were present outside the licensed premises. The Chief of Police, SWAT team members, and deputy sheriffs all had responded. Of the seven vehicles, at least five had their blue lights flashing. A half-dozen or so phone calls were attempted. Respondent was informed that if the occupants of Jalisco's Corner did not come out the SWAT team was coming in. But, the officers wanted to avoid a forced entry because of the presence of children, at least the baby and the child who had seized the firearm. After 20 to 30 minutes of negotiation and with the SWAT team prepared to enter, the occupants emerged from the building. As a Spanish-speaking officer questioned respondent, the child who had taken the weapon was questioned, too. They did not reveal the whereabouts of the weapon. Search dogs were brought in to the building but the firearm taken by the child into the licensed premises was never found by the authorities.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered ordering Respondent to pay a civil penalty in the amount of $1,250.00, ($250.00 for the hours of sale violation and $1000.00 for violation of Section 562.41(4)), and that alcoholic beverage license No., 64-00448, series 2-COP, be suspended for a period of time of 30 days. DONE and ORDERED this 2nd day of June, 1994, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 2nd day of June, 1994. APPENDIX Petitioner's findings of fact Nos. 1-16 have been adopted, in substance, insofar as material. Respondent submitted no proposed findings of fact. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 John J. Harris Acting Director DABT Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Elias Zarate-Rizo Pro Se 105 North Summit Street Crescent City, Florida 32112 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On August 6, 1980, the Respondent Gerald B. Natelson, was charged in the United States District Court, Eastern District of Missouri, with violating Sections 841(a)(1) and 846, Title 21, USC, by knowingly and willingly, combining, conspiring, confederating and agreeing with others to distribute and possess with intent to distribute, marijuana, methaqualone and hashish, Schedule I and II controlled substances. The Respondent Natelson pled guilty to violating Sections 841(a)(1) and 846, Title 21, USC, as charged in Count I of the Indictment, by knowingly conspiring with others to distribute and to possess with intent to distribute marijuana. The amount or quantity of marijuana which was involved in the conspiracy set forth in Count I, is not identified in the Indictment, the Judgment and Probation/Commitment Order entered December 22, 1980, or Judge Aronovitz's Order Granting Motion to Vacate, Set Aside or Correct Sentence, and Granting Petition for Writ of Habeas Corpus in Natelson v. United States, Case No. 82-542 SMA, entered May 10, 1982. The Indictment, at paragraphs 12, 14 and 22, sets forth the Respondent's involvement in the conspiracy, which consisted of meeting in Hollywood and Fort Lauderdale, Florida, on April 1 and 4, 1979, and Phoenix, Arizona, on June 1, 1979, with specifically named co-conspirators. Jose Fanelo, president of Universal Casualty Insurance Company and formerly regional director for the Department of Insurance, and Les Lloyd, regional investigator for the Department of Insurance, established that the Respondent had been a fit and trustworthy insurance agent. Additionally, the Respondent submitted various documents, identified as Respondent's Exhibits 2- 13, which support the opinions expressed by Fanelo and Lloyd that the Respondent is a fit and trustworthy insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent Gerald B. Natelson. DONE and ORDERED this 20th day of May, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983.
Findings Of Fact O.L.T., the Petitioner, was hired by Disc Village, Inc., as a youth counselor at Greenville Hills Academy in December, 1995. Because of the nature of the employment, the Petitioner provided Disc Village, Inc. a fingerprint card for the purpose of conducting the statutorily required criminal records check. The Petitioner reported his prior arrest and subsequent plea of guilty to criminal charges in South Carolina to his employer at the time of his application for employment. The criminal records check reveal the Petitioner's arrest and the investigator at the Department of Health and Rehabilitative Services (DHRS), which was administering this part of the program at the time, requested the Petitioner to provide them information regarding his criminal record in South Carolina in order to determine if the offense involved was disqualifying under the Florida law. The records from South Carolina were provided to DHRS by the Petitioner, and revealed he had plead guilty to "conspiracy to possess cocaine with intent to distribute," in Horry County, South Carolina on December 7, 1987. Based upon these records, which were provided to the Department of Juvenile Justice (DJJ) by DHRS when DJJ assumed full administration of the juvenile justice program, DJJ determined that the Petitioner was disqualified from employment as a youth counselor, and advised Disc Village, Inc., which discharged the Petitioner from the position in which he was employed. The Petitioner's court records from South Carolina were introduced as Department's Exhibit 3. These records reveal that the Petitioner pleaded guilty to "conspiracy to possess cocaine with intent to distribute." These records do not reveal the statute to which the Petitioner pleaded guilty. The sentencing document references only the indictment (87-GS-26-1796). Indictment 87-GS-26-1796 does not reference a specific statute, but recites the Petitioner did "knowingly, wilfully and intentionally, combine, conspire, confederate and agree between and among and have tacit understanding with a reliable informant working with the Myrtle Beach Police Department and with other evil disposed persons whose names are unknown to the Grand Jurors for the purpose of Possessing Cocaine with Intent to Distribute." Joint Exhibit 1 is a copy of a portion of the South Carolina Code defining criminal offenses involving possession of drugs. There are two portions of the exhibit which address conspiracy, Section 44-53-370(e) and Section 44-53-420. Section 44-53-420 provides that any person who attempts or conspires to commit any offense made unlawful by the statutes, shall be fined or imprisoned not more than half of the punishment prescribed for the offense which was attempted or which was the object of the conspiracy. Section 44-53-370(e) provides that any person who knowingly sells, manufactures, delivers, or brings into this state, or who provides financial assistance or otherwise aids, abets, or conspires to sell, manufacture, deliver, or bring into this state, or who is knowingly in actual or constructive possession of: (1) ten pounds of marijuana . . . ; (2) ten grams or more of cocaine or any mixtures containing cocaine is guilty of a felony which is known as trafficking in cocaine and upon conviction must be punished as follows if the quantity is: (a) ten grams or more, but less than twenty-eight grams, . . . not less than three years . . . ; (b) twenty-eight grams of more, but less than one hundred grams . . . not less than twenty-five years . . . [.] These are mandatory minimum sentences. The Petitioner was sentenced to one year in prison, and that sentence was suspended and he was placed on one years probation. Although the Petitioner was arrested for conspiracy to possess more than 28 grams of cocaine, the indictment and sentencing documents do not reflect that he was charged with that offense, and his sentence is less than the minimum mandatory sentence for either of the offenses regarding possession or conspiracy to possess cocaine, even if the court reduced the sentence by a half pursuant to Section 44-53-420. None of the court records establish an amount of cocaine which Petitioner was charged with possessing, conspiring to possess, or to which the Petitioner plead guilty to conspiring to possess. The Petitioner is a Black male who graduated from Florida A and M University, and was commissioned in the U.S. Air Force. He was employed by the Florida Probation and Parole Commission as a probation officer until going on active duty in the Air Force where he was trained as an Air Policeman. He left the Air Force and was employed as by the Commission of Alcoholism and Drug Abuse in South Carolina where he established diversion programs for persons charged with driving under the influence. He was subsequently employed in the low energy assistance program of the state, and then left state employment to work for C & S Bank, at which time he left South Carolina. Subsequently, he left C & S and returned to South Carolina where he started his own construction company. Because of financial hard times, he lost money and had to declare bankruptcy. At the time of the events which gave rise to the charges against him, his wife was employed by the local prosecuting attorney, and he was well known to local law enforcement officers. In 1987, he was working in Myrtle Beach, South Carolina; and it was his practice to eat lunch with a group of persons who were self employed, none of whom were involved in illegal dealings. This group of acquaintances also got together occasionally after work for a drink, and at one of these meetings one of the members of the group raised the possibility of investing in an enterprise which was not described, but which was represented to be very lucrative. From the way it was presented and very large return which was available, the Petitioner concluded it was an illegal activity, and was shocked that this person would make this representation. When he left the meeting, he was asked whether he wished to participate, he indicated that he would have get back to them about it. Upon leaving the meeting, Petitioner commented to one of the other attendees that the enterprise was undoubtedly illegal and something to be avoided. Several days later, he received a telephone call after having been out with another group of friends drinking. The caller did not identify himself and was not a party to the earlier meeting; however, the caller referenced that meeting. The caller advised the Petitioner that the caller had $40,000, and indicated indirectly he was calling about drugs and wanted to meet with Petitioner. The Petitioner said he did not know what the caller was talking about, but would meet him in a vacant parking lot, very close to Petitioner's house, to determine what the caller was calling about. The Petitioner did not acknowledge in the call what the caller was talking about or agree to do anything beyond meeting the caller. Petitioner admitted that he had been drinking most of the evening, was drunk, and agreed to meet with the caller just to see if he really had the money. The Petitioner thought it could be a practical joke, and really did not give a great deal of thought to the matter because he was so drunk. The Petitioner had picked the vacant parking lot in which to meet the caller because it was close to Petitioner's house and he would not have to drive far as drunk as he was. The area was also well lighted and he felt safe there. Petitioner arrived at the parking lot, stopped his car, and was immediately surrounded by police officers who arrested him for conspiracy to traffic in cocaine. A search of Petitioner revealed Petitioner was carrying twenty-seven cents. A search of his wife's car, which he had driven to the meeting, revealed his wife's pistol for which she had a permit and which she kept under the driver's seat. The Petitioner knew the gun was there. There were no drugs found in the car. The caller was not present, and was never arrested or identified. Petitioner was represented by the former solicitor (prosecutor) for the county. Petitioner and his attorney listened to the tape of the telephone conversation shortly after Petitioner's arrest. The tape was consistent with the Petitioner's testimony above; however, prior to trial, a copy of the tape was produced which was altered to be more damaging. Petitioner's attorney indicated that it would be very expensive to have the tape analyzed and to fight the charges, and that Petitioner could be sentenced up to twenty-five years for the offense. Petitioner's attorney advised Petitioner that the prosecutor was offering one year's probation if Petitioner plead guilty. On the advise of counsel, Petitioner accepted the plea bargain. The Petitioner satisfactorily completed his probation, and has spent the intervening time supporting his children by working at various occupations to include installing cable TV and working on a electronic components assembly line after his return to Madison, Florida. He has attempted to rehabilitate his reputation by working regularly, avoiding disreputable persons, and attending church regularly. His employment with Disc Village, Inc. was his first attempt to reenter the criminal justice field since his probation. At the time of the hearing, Petitioner was volunteering as a facilitator in a life skills class, but was unemployed. Petitioner's coworkers and supervisors testified in his behalf. They found him to be honest, truthful, and morally upright in his actions and dealings with them and the young people with whom he counseled. He spent many extra hours at the facility, and respected by young people for whom he was an effective counselor. Petitioner would not be a danger to young people. No credible evidence was presented that the Petitioner did not possess good character or was a danger to children. Since his probation, the Petitioner has had no further criminal involvement. He has been gainfully employed until discharged from Disc Village, and has been engaged in worthwhile volunteer work since then. He attends church regularly, sings in the choir, and lives with a minister. Petitioner has amended his life, and has a reputation of being honest and truthful. His work with the young people at Disc Village was exceptional, and he was held in high esteem by the staff and the young people.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That Petitioner be qualified to work with youth in the Department's facilities and those of its contract agencies. DONE and ENTERED this 8th day of December, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 8th day of December, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3630J The parties submitted proposed findings of fact which were read and considered. The following states which facts were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraphs 1,2 Irrelevant. Paragraph 3 Paragraph 1. Paragraph 4 Paragraph 2. Paragraph 5 Irrelevant. Paragraph 6 Paragraph 3. Paragraph 7 Subsumed by Paragraph 4. Paragraph 8 Paragraphs 3,5. Paragraph 9 Subsumed by Paragraph 6. Paragraphs 10-12 Irrelevant. Paragraphs 13-16 Subsumed in Paragraph 18. Paragraphs 17-20 Irrelevant. Paragraphs 21-23 Subsumed in Paragraph 18. Paragraphs 24-26 Irrelevant. Paragraphs 27-31 Subsumed in Paragraph 18. Paragraphs 32-35 Discussed in the C/L and rejected as credible witnesses regarding the Petitioner's character Paragraphs 36-40 Unnecessary. Paragraphs 41,42 Subsumed in Paragraph 17. Paragraphs 43,44 Conclusions of Law (C/L). Respondent's Recommended Order Findings Paragraphs 1-3 Subsumed in Paragraphs 1,2 Paragraph 4 Conclusion of Law. Paragraphs 5,6 Subsumed in Paragraph 1. Paragraphs 7-9 Subsumed in Paragraph 4. Paragraphs 10,11 Subsumed in Paragraph 2. Paragraph 12 Paragraph 3. Paragraph 13 Paragraph 7. Paragraphs 14,15 Subsumed in Paragraph 4. Paragraphs 15-17 The discussion of the informal hearing and its results is irrelevant. Paragraph 18 Rejected as contrary to more credible evidence. Paragraphs 19-21 Irrelevant. Paragraph 22 Conclusion of Law. COPIES FURNISHED: Richard M. Summa, Esquire Post Office Box 1677 Tallahassee, FL 32302 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, FL 32399-3100 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, FL 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, FL 32399-3100
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
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 has been at all times material to the instant case, an employee of Vanguard Security and the holder of a Class "D" security guard license and a Class "G" statewide firearms license. Vanguard Security (hereinafter referred to as "Vanguard") is an agency which provides armed and unarmed security services to its clients. Vanguard has a written policy prohibiting the display and use of firearms by its security officers except where such conduct is reasonably necessary to prevent imminent bodily harm. Vanguard also has a written policy forbidding its security officers from leaving their assigned posts while they are on duty. These written policies are set forth in an employee handbook that all employees of the agency are given. On the evening of October 25, 1993, Respondent was assigned to provide armed security services in a warehouse area in Dade County, Florida. At approximately 10:00 p.m. that evening Andrea Ramsey was walking her friend's unleashed dog, a Doberman pinscher named "Chewy," in the vicinity of the warehouse area Respondent was responsible for guarding (hereinafter referred to as Respondent's "post" or "posted area"). Chewy's owner, Eileen Escardo, was working late in her photography studio which was located across the street from Respondent's post. Respondent saw Ramsey from afar. His suspicions aroused, he walked toward her to investigate. Respondent left his posted area and started to cross the street that separated the posted area from the warehouse in which Escardo's photography studio was located. When he was approximately 20 feet from Ramsey, he asked her if Chewy, who was by a tree to her left, was her dog. Ramsey responded in the affirmative. Chewy then, in a leisurely manner, headed toward Ramsey and Respondent. Although Chewy was moving in Respondent's direction, he did so in a manner that did not reasonably suggest that he was going to attack Respondent. Nonetheless, Respondent panicked. Contrary to his employer's written policies regarding the display and discharge of firearms, he drew his revolver and, when Chewy was approximately three or four feet away from him, fired the weapon, but without any intention of shooting the dog or Ramsey. The bullet hit and shattered the glass door of the business next to Escardo's photography studio. Fortunately, no one was hurt or injured. Ramsey screamed when Respondent fired his revolver. Escardo heard her friend's scream, as well as the shot that preceded it. She rushed out of her studio to see what had happened. Escardo saw Ramsey standing in the middle of the street, with Respondent nearby holding a revolver. After instructing Ramsey to call the police, Escardo walked toward Respondent. Pointing his revolver at Escardo, Respondent warned her to stay away from him. Despite the warning, Escardo, who was unarmed, continued to approach Respondent until she was close enough to push him and the revolver aside. She then turned around and walked toward her studio to wait for the police.
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 violations of Section 493.6118(1)(f), Florida Statutes, in alleged Counts I and II of the Amended Administrative Complaint, and (2) disciplining him for having committed these violations by revoking his Class "G" statewide firearms license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of July, 1994. _ STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1994.
