The Issue Whether the Petitioner, Jose Iglesias (Petitioner or Iglesias) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On August 14, 2003, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. The Complaint alleged: Vice Mayor Iglesias is constantly interfering with Police Department’s day-to- day operations, and spreading false rumors about Police Department personnel. (Document #1) Vice Mayor Iglesias is causing a hostile work environment with constant complaints about officers. Vice Mayor Iglesias is constantly encouraging racism, pitting hispanics against white and black officers of the Department. Vice Mayor Iglesias filed false police reports (verbally) constantly for his own gain and benefits. Vice Mayor Iglesias’s 16-year-old son works part time in Town Hall. (Nepotism) Vice Mayor Iglesias improper use of his title by instructing the Town Manager to take actions on the police department, and even retaliation against the Police Chief and myself. Vice Mayor Iglesias ordered public records about himself not to be released, and then when they were released he insisted the secretary releasing the records be fired. (Document #1) Mr. Iglesias is falsely using the title of M.D. and in fact used this title to gain his seat on the council and then becoming Vice Mayor. When Mr. Iglesias has been questioned on this matter by residents in the past he has stated he was a brain surgeon, a foot doctor, and a chiropractor, and could not list a hospital where he did his residency to become M.D. (Document #2) At all times material to this case the Petitioner was Vice Mayor serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Respondent is a town employee and serves as a police sergeant within the police department. Mr. Nieman has been so employed for over 20 years. After an investigation of three of the allegations set forth in the Complaint (only three were deemed legally sufficient to warrant investigation) and consideration of the Advocate’s recommendation, the Ethics Commission entered a Public Report on March 16, 2004. The Public Report dismissed the Complaint and closed the matter. On April 14, 2004, the Petitioner filed the instant Fee Petition pursuant to Section 112.317(8), Florida Statutes (2004). The Fee Petition alleged that the Complaint “is based on eight allegations, all of which are false and were known to be false by Complainant when he filed the Complaint.” Additionally, the Fee Petition stated the Complaint “was filed by the Complainant with the knowledge the Complaint contained one or more false allegations, or with reckless disregard as to whether the Complaint contained false allegations. ” At hearing, the Petitioner presented evidence as to the three allegations of the Complaint that were investigated and deemed legally sufficient to require an ethics investigation. Those allegations were: whether the Petitioner had filed false police reports for his personal benefit; whether the Petitioner had attempted to prevent the release of a public record or insisted on the firing of the person who had released the record; and whether the Petitioner had caused his son to be employed by the Town. The false police reports allegation stemmed from the Petitioner’s use of public roads for rollerblading. The Petitioner is an avid rollerblader and likes to rollerblade for exercise. The Petitioner opined that rollerblading puts less stress on his back and has less impact than jogging. The Petitioner frequently rollerblades on the public road within the Town. Automobile traffic on the road must go around the Petitioner in order to pass. It is the Petitioner’s position that since there is no sidewalk or shoulder suitable to rollerblade, he is entitled to use the road surface just as a pedestrian might use the road surface. The Petitioner skates toward the middle of the lane and not on the edge of the road surface because the roadway is better there for the rollerblades. The record in this case does not clarify whether the Petitioner skates with or against the traffic. In connection with the rollerblading, the Respondent believes that the Petitioner is not entitled to use the road as he does and that if the Petitioner did not use his position as a councilman for influence, he would be cited for rollerblading down the road as he does. Further, the Respondent maintains that the Petitioner has made verbal complaints against motorists who passed too close to him. The Respondent maintains that the verbal complaints are false in that the Petitioner is not entitled to use the roadway as he does and therefore cannot complain against motorists as he does. The Petitioner does not deny the activity. The Respondent has observed the Petitioner rollerblading down the road. The Respondent has not issued a citation to the Petitioner because he is assigned an administrative position within the police department and he believes he is not allowed to issue such citations. The Respondent based the allegation regarding this claim upon statements he has heard from police officers within the Town’s police department. The Respondent did not subpoena the officers to the hearing because he did not want to involve other Town employees in the matter. The Respondent does not have any evidence to support the allegation other than what he believed he had been told in his experience as a police officer for the Town. The record does not demonstrate any written record of either the Petitioner being cited for improper rollerblading or making a report against a vehicle. As to the second allegation that was investigated, a memo purportedly from the chief of police was released to a member of the public by accident. It was included within a stack of documents that had been requested by a private citizen. The document stated in part: SUBJECT: Ethics violations and continual interference of day-to-day police operations by the Vice Mayor Iglesias This memorandum is to inform you [Mayor Michael Addicott] of constant harassment of police personnel and interference in daily operations by the new vice mayor. The Petitioner admitted that he was concerned that the document had been released in error and that the person who wrongly released a document should be disciplined. The Petitioner did not know about the document before it was released. He did not attempt to prevent the release of the document. Instead, the Petitioner sought to, after-the-fact find out why the document had been released, if the document was in fact a public record subject to release, and if the employee should be disciplined for the release. The document in question was a public record, was subject to public release, and the employee was not disciplined for its release. Nevertheless, the Petitioner did require a second (and arguably third opinion) regarding whether the document constituted a public record. In the meanwhile, the controversy within the Town over whether the document should have been released was widely discussed among Town employees. The Respondent filed his claim based upon several reports that the Petitioner wanted the secretary who released the report fired. One of the Respondent’s sources was the Chief of Police. The Respondent did not question the veracity of the police chief. At hearing, the Petitioner did not deny that discipline would have been appropriate if the release of the document were shown to be erroneous. The Petitioner acknowledged that the Town pursued a full review of the matter and that he was among those who called for the review. As to the third allegation (that the Petitioner caused his son to be hired by the Town), the Respondent believed that once the Petitioner was elected as a councilman that the son was not eligible to work for the Town. The Respondent thought that rules prohibiting nepotism applied to the Petitioner’s son and that as such the son could not continue to work for the Town. The Respondent based this interpretation on a general but un- researched idea about nepotism. He also discussed this matter with another Town employee who also thought the son was not eligible to work for the Town. In fact, the Petitioner’s son, Joseph, started working for the Town in a part-time position prior to the Petitioner being elected to office. After the Petitioner became Vice Mayor, the son continued with his duties but was moved from an independent contractor status to part-time employee status. The son then received a raise in his hourly rate of pay when the Town employees also received a raise. The Petitioner did not supervise the son’s employment and did not direct the son’s work. The record is unclear as to whether the Petitioner voted on the pay raise or not. At hearing the Respondent maintained that he had had numerous conversations with persons at the Ethics Commission who recommended that he add the information regarding the nepotism claim to his allegations. He admitted that he did not independently check any laws or rules that might pertain to nepotism before filing the claim. Much of the Respondent’s attitude and comments in connection with the Petitioner must be viewed in the context of the happenings within the Town. For unknown reasons, the Town, its employees, and the governing council were in a state of change and confrontation. The Respondent and the Petitioner apparently do not relate well to one another personally. The Respondent is suspicious of the Petitioner’s medical credentials and is uncertain as to why the Petitioner holds himself out as an “M.D.”, when he is not licensed nor is he eligible to be licensed as a medical doctor. The Petitioner believes the Respondent holds some animosity toward him for unknown reasons. Further, because the Respondent admitted he believes the Petitioner is arrogant, that belief somehow that demonstrates malice toward the Petitioner. The questions of whether the Petitioner is credentialed to be a medical doctor, whether the Petitioner attempted to interfere with the police department, or whether the Petitioner spread false rumors regarding the police department were not investigated and do not support, if true, an ethics violation. If attorney's fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney's fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense against the Respondent’s Complaint. The expert merely opined that the invoices he reviewed were reasonable. He maintained that the Petitioner should recover $27,455.53 in this matter.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of June, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026
The Issue The issue to be determined is whether Petitioner has demonstrated eligibility for licensure as a resident life, including variable annuity, insurance agent.
Findings Of Fact Based upon the observation and the demeanor of the witnesses while testifying, documentary material received in evidence, stipulation of the parties, and evidentiary rulings during the hearings, and the entire record complied herein, the following relevant, material, and substantial facts are determined: The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2004). On October 4, 2004, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity, insurance agent. The online application form completed by Petitioner for the licensure at issue included the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered this question in the negative. On November 9, 2004, the Department sent a letter to Petitioner, requesting she provide, among other things, certified copies of court documents relating to her 1999 arrest in Hillsborough County, Florida, for child abuse. Petitioner found the above question to be confusing and in an attempt to be completely forthcoming, she sent the Department copies of two documents: (1) an August 9, 2004, letter to Petitioner from the Department of Corrections and (2) Petitioner's two-page printout regarding the Probation/Parole record. The Department received the referenced documents on November 23, 2004. Petitioner's criminal history established a November 18, 1999, arrest on two felony counts of aggravated child abuse. Petitioner had used an electric cord to spank her daughter as punishment for stealing and had left marks on the child as a result. The two-count information was filed in the Thirteenth Judicial Circuit, Hillsborough County Circuit Court, Case No. 99-20373, on January 27, 2000. On December 13, 2000, Petitioner entered a plea of guilty to one felony count of child abuse, as set forth in Count II of the information, and the second count pending against Petitioner was nolle prossed. The disposition of the case was that adjudication of guilt be withheld on the one felony count of child abuse and that Petitioner be placed on four years probation and required, inter alia, to complete parenting and anger management classes, which she did. Circumstances that resulted in Petitioner's plea involved her method of disciplining her daughter. Petitioner was born and grew up in Haiti and her method of punishment, spanking her daughter with electric cord, is culturally accepted. Spanking with electric cord leaves bruises and marks on the child spanked. Petitioner's testimony indicates that she learned through her anger management classes that the Haitian method of punishment is not considered appropriate, and other nonphysical methods would bring about desired results. Petitioner now has four children. She is employed by Lakeshore Villas, a nursing home where she is responsible for caring for elderly persons, as a full-time Certified Nursing Assistant (CNA). To acquire her CNA license from the Department of Health (DOH), Petitioner testified that she reported her criminal history to the DOH, and no disciplinary action was taken by the agency because of her plea. Even though the answer to the criminal history question on her application for licensure was not correct, circumstances evident from evidence of record reveals that Petitioner, in fact, disclosed her criminal history to the Department prior to the Department's specific inquiry about that history. She testified that her "no" answer on the application was because she spent only two days in jail. Subsequently realizing the possibility of a misunderstanding, Petitioner, before a request by the Department, mailed documents to the Department that disclosed her criminal history. Viewed in the totality of circumstances, Petitioner's voluntary disclosure of her criminal history negates any reasonable inference or conclusion that Petitioner made an intentional "[m]aterial misstatement, misrepresentation, or fraud in . . . [her] attempt to obtain the licensure or appointment," Subsection 626.611(2), Florida Statutes (2004). Likewise, the simple fact that Petitioner (through misunderstanding) incorrectly answered the application question does not show that Petitioner's conduct demonstrated a "lack of fitness or trustworthiness to engage in the business of insurance." Notwithstanding the foregone findings, there is no evidence that Petitioner was under the age of 21 years when the crime was committed. There is no written documentation from the prosecuting attorney evidencing the belief that Petitioner posed no significant threat to public welfare if licensed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Petitioner did not attempt to obtain the license at issue through material misstatement, misrepresentation or fraud, but that Petitioner has not met the 15-year mandatory waiting period applicable to her criminal history and is, therefore, ineligible for licensure pursuant to Subsection 626.611(14), Florida Statutes (2004), and denying Petitioner's request for relief. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 9th day of August, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alia Baptiste Sossous 10310 Birdwatch Drive Tampa, Florida 33647 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue Whether the Petitioner, Francisco Luis Inguanzo (Petitioner), is entitled to have his application for licensure approved.
Findings Of Fact The Petitioner, Francisco Luis Inguanzo, is an applicant for licensure as a resident public all lines insurance adjuster. He filed an application with the Respondent on or about September 20, 2004. The Department is the state agency charged with the responsibility of regulating licensees and applicants for licensure such as the Petitioner. As such, the Respondent must interpret and administer the provisions of Chapter 626, Florida Statutes (2004). The application for licensure includes several questions that applicants must complete. More specifically, applicants must disclose law enforcement records and, to that end, the Department poses the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No The response the Petitioner provided to the foregoing question was in the negative (that is “No”). When the Department reviewed the Petitioner’s criminal history, however, it was discovered that the Petitioner was arrested and pled guilty to carrying a concealed firearm, a third-degree felony. The Petitioner did not accurately disclose the foregoing arrest and conviction Moreover, the Petitioner did not provide a credible explanation for why he failed to accurately answer the application question. The criminal charges against this Petitioner were resolved on September 10, 2002. After pleading guilty, the Petitioner was placed on one-year probation with various terms to be completed. The Petitioner successfully completed the terms of his probation on May 30, 2003. At the time he filed the application in the instant matter, the Petitioner knew or should have known that he had been charged with a serious crime, that he had resolved the criminal case, and that he was no longer on probation. The Petitioner did not fully disclose his criminal record to the Department. The Department’s application form makes it clear that the applicant’s criminal history must be disclosed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order denying the Petitioner’s application for licensure. S DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 30th day of June, 2005. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julio R. Ferrer-Roo, Esquire Julio R. Ferrer Roo, P.A. 8360 West Flagler Street, Suite 203A Miami, Florida 33144
The Issue Whether Petitioner's application for certification as a certified nursing assistant (CNA) should be approved or denied.
Findings Of Fact On or about October 15, 2013, Ms. Warren submitted to Respondent an application for certification as a CNA. On or about August 15, 2014, Respondent informed Ms. Warren that her Application was being denied for two reasons. The first reason offered for denial is that Ms. Warren violated sections 464.018(1)(a) and 456.072(1)(h), Florida Statutes (2014),1/ by checking the "no" box, instead of the "yes" box, when asked about her criminal history on the Application. The second reason offered for denial is that Ms. Warren is not eligible for licensure because she did not pass the criminal background screening required by section 400.215, Florida Statutes.2/ Criminal Background Screening On March 5, 2012, Ms. Warren entered a plea of nolo contendere to a single count of "resisting an officer with violence" in violation of section 843.01, Florida Statutes. The offense occurred during calendar year 2010. Section 843.01 provides, in part, that any person found to be in violation of this section "is guilty of a felony of the third degree." According to the Order of Probation for this charge, the court withheld adjudication, and Ms. Warren was placed on probation for a period of 30 days. On April 4, 2012, the Florida Department of Corrections sent Ms. Warren a notice of "Termination of Supervision" and noted therein that "[y]ou are hereby notified that you completed your term(s) of supervision on 4/4/12 . . . and are no longer under the supervision of the Department of Corrections." Section 464.203 provides, in part, that "[t]he board shall issue a certificate to practice as a CNA to any person who demonstrates a minimum competency to read and write and successfully passes the required background screening pursuant to s. 400.215." Section 400.215 provides, in part, that "[t]he agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e)," Florida Statutes. Section 408.809(1)(e) provides, in part, that individuals, like Ms. Warren, shall be subject to a level 2 background screening pursuant to chapter 435. Section 435.04(2), Florida Statutes, provides, in part, that "security background investigations under this section must ensure that no persons subject to the provisions of this section have . . . entered a plea of nolo contendere" to "[s]ection 843.01, relating to resisting arrest with violence." The preponderance of the evidence establishes that Ms. Warren failed her background screening test as a result of her plea of nolo contendere to the offense of resisting arrest with violence. Alleged Application Misrepresentation The Notice of Intent to Deny provides, in part, as follows: This matter came before the Board of Nursing at a duly-noticed public meeting on August 8, 2014, in Orlando, Florida. The applicant has applied for certification as a certified nursing assistant by examination. The applicant entered a plea of nolo contendere to a charge of resisting an officer with violence in 2012. The application includes the following question: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. The applicant answered the question NO. It is undisputed that Ms. Warren checked the "no" box in response to the question. It is also undisputed that Ms. Warren should have checked the "yes" box in response to the question given that on March 5, 2012, she entered a plea of nolo contendere to the felony charge of resisting an officer with violence. By correspondence dated August 15, 2014, the Board informed Ms. Warren that it was the Board's intent to deny her Application because she did not truthfully answer the question about her criminal background. In response to the Notice of Intent to Deny, Ms. Warren, by correspondence dated August 21, 2014, informed Respondent of the following: To the State of Florida Board of Nursing, I Ashley Warren made a mistake and checked off the wrong box. I was reading so fast and I was not aware of what I checked off in the box. I had checked off the wrong question. If possible, can I do another application because I would love to become a CNA, and I really hate I made [a] mistake in checking the wrong box. One of the sections of the Application submitted by Ms. Warren is titled, "Initial Licensure - Individual." This section asks multiple questions with subparts. Question 1 of this section directs that if the applicant "responded 'no,' skip to #2." Even though Ms. Warren answered "no" to the question, she, nevertheless, proceeded to answer questions 1.a., 1.b., 1.c., and 1.d. Question 3 of this section directs that if the applicant responds "[n]o, do not answer 3.a." Even though Ms. Warren answered "no" to question 3, she, nevertheless, proceeded to answer question 3.a. The same pattern was repeated with respect to question 4 wherein Ms. Warren answered "no" and then disregarded the directive not to answer questions 4.a. and 4.b. The multiple errors made by Ms. Warren when completing the Application support her contention that she was rushing while completing the Application. During the formal hearing, Ms. Warren testified as follows: Q: Okay. Now, you were arrested again in 2010? A: Yes. * * * Q: And you were charged with resisting an officer with violence? A: Yes. * * * Q: Did they put you in jail? A: Yes. Q: And you went to court on that charge? A: Yes. Q: Okay. I'm looking at page 20 of the exhibit, your Honor. You had an order withholding adjudication; is that correct? A: Yes. Q: And you pled nolo contendere or no contest to that charge? A: Yes. Q: Were you put on probation? A: I was put on PYT. Q: All right. What is PYT? A: It's something like a probation that you complete and it will be off your record. * * * Q: Okay. Now, on the application the question concerning criminal history says "have you ever been convicted of or entered a plea of guilty, nolo contendere or no contest to a crime in any jurisdiction other than a minor traffic offense." What about that don't you understand? A: I really don't understand none of it. * * * Q: Yes. You testified earlier that in your 2010 charge you pled nolo contendere or no contest to resisting an officer with violence. You said that was correct. Is that correct? A: Yes. Q: So did you understand what a nolo contendere plea was in 2010? A: No. Q: Did your lawyer advise you to plead nolo contendere? A: Yes. Q: Did your lawyer explain to you what that kind of plea meant? A: No. Q: Did the judge explain to you what that kind of plea meant? A: Yes. Q: Once it was explained to you, you decided to plea nolo contendere? A: I didn't understand the question when I was reading over it. Formal hearing Transcript, pp. 17–21. Additionally, Ms. Warren also testified as follows: Q: In responding to the criminal history question, if you didn't understand it, why didn't you just leave it blank? A: Because I didn't know if I would have sent it off and leave it blank if I would have got my license, but, at the same time, when I had went through the probation office and everything, they told me that everything was going to be off my record, that I completed all my terms and everything because it was my first time on having adult charge. So I really didn't understand none of that. So I'm going by their word. So I'm thinking if I don't have it on my record, I completed it, I can put "no" on the answer. It's not on my record. Formal hearing Transcript, pp. 24-25. Ms. Warren's testimony that she believed it was proper to answer "no" to the criminal background question on the Application is credible. The fact that Ms. Warren made multiple mistakes on her Application, coupled with her genuine belief that the charge of resisting an officer with violence was no longer on her record, indicates that Ms. Warren acted honestly and did not intend to misrepresent her criminal history when completing her Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Ashley Q. Warren's, Application for certification as a CNA due to her failure to pass the level 2 background screening. DONE AND ENTERED this 17th day of February, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2015.
Findings Of Fact In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years. During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales. In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again. The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony. Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried. The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted. Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure. In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time. The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above. Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted. DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made. Respondent's Proposed Findings of Fact Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made. Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery. Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented. COPIES FURNISHED: Mr. William C. Harrell P.O. Box 5503 Jacksonville, FL 32247 John C. Jordan, Esq. Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esq. General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue The issue in this case is whether Respondent, a certified law enforcement officer, failed to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties, a failure that, if proved, would warrant the imposition of discipline upon Respondent's certificate.
Findings Of Fact Respondent Pablo Barrios ("Barrios") is a Florida- certified law enforcement officer and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Criminal Justice Standards and Training Commission ("Commission"). At the time of the final hearing, and at all times relevant to this case, Barrios was employed as a police officer by Florida International University ("FIU"). The events giving rise to this proceeding took place on July 17, 2003. That morning, Barrios attended an in-service training class taught by Sgt. Alfonso. There were about a dozen other FIU police officers in the class. Shortly after the class began, Barrios and Sgt. Alfonso got into an argument over Barrios's use of a digital recorder. (Sgt. Alfonso was apparently offended that Barrios would record the lecture; Barrios claimed that he was merely using the device to keep track of the time.) Sgt. Alfonso asked Barrios to leave the classroom. Barrios did leave, remarking on his way out that if he (Barrios) had intended to turn on the recording device, he would first have told everyone in the "fucking room." Barrios later returned to the classroom and sat in the back. The lesson proceeded to conclusion uneventfully. When the class ended, Capt. Wright entered the room. Someone had reported the verbal altercation between Barrios and Sgt. Alfonso, and Capt. Wright was there to find out what had happened. To that end, Capt. Wright asked each of the officers present to prepare a statement describing the incident and stating specifically whether "improper language" had been used. In response to Capt. Wright's request, Barrios wrote the following statement: I was single[d] out by Sergeant Alfonso for taking out [sic] a personal recorder out of my laptop bag. Capt. Wright considered Barrios's statement to be incomplete. He therefore wrote the following question beneath Barrios's description of the event: Lt. Barrios, was improper language ever used during the incident. Barrios answered the captain's query, in writing, with one word: "No."1 Ultimate Factual Determinations The undersigned infers (and is convinced) that Barrios knew, when presented with Capt. Wright's imprecisely drafted question regarding the use of "improper language," that this interrogatory, though ambiguous and open to interpretation, was meant to require Barrios to either admit or deny using the "f" word during the incident. The undersigned further infers (but is not convinced) that Barrios was likely aware that Capt. Wright would misinterpret Barrios's negative answer as an affirmation that no one (including Barrios) had uttered the word "fuck" or any of its cognates. The undersigned is not clearly convinced, however, that Barrios intended to mislead Capt. Wright.2 Rather, since admitting that his language had been "improper" would have been tantamount to confessing misbehavior,3 Barrios likely intended to deny having engaged in inappropriate behavior. The undersigned is also not clearly convinced that Barrios's statement was false, for two reasons. First, the undersigned is not convinced that Barrios believed his language to have been improper.4 To the contrary, the evidence persuades the undersigned that Barrios subjectively believed his words were justified. It is likely, in other words, that Barrios made what was, for him, a true statement. Second, Barrios's statement has not been clearly and convincingly falsified——that is, shown via ordinary evidence to be objectively untrue. Because the adjective "improper" reflects an opinion or judgment about something, such an opinion could be falsified only if5 (among other things) there were a clear objective standard against which to measure or judge the thing in question.6 The Commission offered no evidence regarding such an objective standard for determining that Barrios's language was improper and hence failed objectively to falsify Barrios's denial that improper language had been used.7 In sum, the Commission failed clearly and convincingly to prove, as was its burden, that Barrios made a "false statement" with the intent to mislead Capt. Wright.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Barrios not guilty of failing to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties. DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 16th day of February, 2005.
The Issue The issue is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment with Always Promoting Independence, LLC, and Supporting Independence/Honor Health Care Management, both service providers are regulated by Respondent. Petitioner wants to work as a direct service provider, which requires background screening. The results of Petitioner’s background screening revealed a history of criminal offenses. Respondent relies on the Department of Children and Families Background Screening Unit (“Department”) to initially receive exemption from disqualification requests and to compile documents related to such requests. On February 8, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire (“Questionnaire”), various criminal records, character references, and other various documents (the “Exemption Packet”), to the Department seeking to demonstrate support for the granting of an exemption from employment disqualification. The Department subsequently forwarded the Exemption Packet to the Agency for review. To begin its exemption review, Respondent considered Petitioner’s disqualifying offense. In May 1991, Petitioner committed the disqualifying offense of “Fraudulent Use of Credit Card” (six counts). Petitioner pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to 24 months’ probation and payment of fines and court costs. She completed her term of probation early. In its continued exemption review, Respondent considered the following non-disqualifying offenses, which Petitioner obtained subsequent to her May 1991 disqualifying offense: an arrest for “Aggravated Assault with a Firearm” in August 1997 (a violation of section 784.021, Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in October 2007 (a violation of section 322.34(2), Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in September 2008 (another violation of section 322.34(2)); an arrest for “Possession of Cannabis” in March 2012 (a violation of section 893.13(6)(b), Florida Statutes); and a conviction for “Possession of Drug Paraphernalia” in March 2012 (a violation of section 893.147(1)). Petitioner received notification by letters dated September 22, 2015, and January 12, 2016, from the Department, Respondent’s background screening entity, of her disqualification from employment due to criminal history. The specific disqualifying offense listed in both letters was “Fraud-Illegal Use of Credit Cards,” a violation of section 817.61, Florida Statutes. Petitioner provided details of the circumstances surrounding the disqualifying offense. In short, Petitioner indicated she gave three “associates” a ride to the mall in exchange for their promise to buy her a new pair of shoes. She left the Champs sports store with her shoes, expecting one of her companions to pay for them. She was in her car when her companions ran from the store with a security guard in pursuit. They told her to start the car which she refused because she believed she had not done anything wrong. Unfortunately for her, one of her companions had attempted to pay for her new shoes with a stolen credit card. She and her companions were arrested and charged with credit card fraud. Petitioner provided documentation of the charge, the disposition after her no contest plea, and the fact that her probation was terminated early. Petitioner provided explanations for all but one of the non-disqualifying offenses that ranged from the gun charge being at the end of a “bad relationship” (her then-girlfriend falsely accused her); to she was pulled over for a broken taillight, then charged with driving with a suspended license (she claimed she paid her tickets and the license was reinstated, although no records were provided on this point); to she was pulled over for having too dark a window tint in her car and cannabis was found (she testified it was not hers), but, since no one confessed to ownership, all were cited for possession; and finally to no explanation at all for the 2007 driving with a suspended license charge. Petitioner accepted little responsibility for her criminal offenses and concluded with the statement that she has no current involvement with any court system; she stated she is in “good standing.” Petitioner indicated on her Questionnaire that there was no harm to any victim or property, including damage or injury, in her past. Petitioner indicated on her Questionnaire that there were no stressors in her life at the time of the disqualifying offense. Regarding current stressors in her life, Petitioner testified she is unable to provide for her family and she is eager to obtain and keep steady employment. Petitioner listed her educational achievements as a diploma from Clearwater High School (1988), an Associate in Arts degree from Tampa Tech in computer engineering (1991), and an Associate in Science (“A.S.”) degree from St. Petersburg College in human services (2014). Petitioner indicated on her Questionnaire that she has received no counseling for any reason. Petitioner indicated on her Questionnaire that she has no history of alcohol and drug abuse. Petitioner indicated on her Questionnaire that she is involved with a community organization known as “Parents that Care.” As to expressing remorse or accepting responsibility for her actions, Petitioner testified she completed her probation early and that she no longer surrounds herself with negative influences and people. Petitioner’s recent work history has been stable. Her work history since 2009 indicates she has worked for two groups providing direct support/in-home support staff: Supporting Independence/Honor Health Care Management (2012-present) and Peaceful Dreams, Inc. (2009-2012). In addition to the criminal records submitted, Petitioner also offered affidavits of good moral character, written personal statements, IRS W-2 Forms, a copy of her A.S. degree from St. Petersburg College, and three letters of reference attesting to her character. The letters were written by people who have known Petitioner for many years and who believe her to be hard-working, reliable, and caring. Petitioner also submitted a copy of an exemption from disqualification she had received from the Agency for Health Care Administration (“AHCA”) dated May 27, 2014. Jeffrey Smith, regional operations manager for the Suncoast Region, testified that the Agency reviewed all the provided documentation provided by Petitioner, the information provided on the Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her educational record, her character references, and her exemption from AHCA. Following a review of all the documentation included in the Exemption Packet, Agency Director Barbara Palmer advised Petitioner by a letter dated May 27, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to provide clear and convincing evidence of her rehabilitation. Mr. Smith testified the Agency considered all the documentation submitted by Petitioner in her Exemption Packet, as well as the additional documents provided prior to and at the hearing. He did not find that the documentation negated or refuted the official records of the disqualifying and non- disqualifying offenses. Further, the fact that the non-disqualifying offenses related to Petitioner’s driving is relevant to the position for which she seeks an exemption from disqualification. A direct service provider is often called upon to transport individuals entrusted to her care. Petitioner’s statement that her license was reinstated and that she received no more driving citations after the offenses described above was refuted by Mr. Smith, based upon subsequent driving records regarding Petitioner. Mr. Smith also noted two additional reports from the Department in which Petitioner was named the alleged perpetrator. One report showed some indicators of child abuse (cuts/punctures/bites/excessive corporal punishment), and the other report involved allegations of exploitation of a vulnerable adult, specifically, one with a developmental disability, but resulted in no official findings of exploitation. The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities are defined as intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid syndrome. Without the Agency’s services, these clients would require institutionalization. Petitioner testified passionately that she enjoys working with individuals with disabilities. Working in this field inspired her to return to school to earn a degree in human services. She testified that working with persons with disabilities is her long-term goal. She admitted she made some “foolish mistakes” when she was younger, but that she now accepts responsibility for her actions. She also testified that she believed her exemption should be granted because another agency, AHCA, had granted her an exemption from disqualification. Respondent countered with the fact that this vulnerable population requires being able to rely on the direct care provider’s good character and trustworthiness. Individuals entrusted with the care of the disabled are often called upon to make decisions of a financial, medical, and social nature. The Agency must weigh the benefit against the risk when considering granting an exemption. Petitioner’s history shows poor judgment on her part, and she provided testimony that was inconsistent with the documentation of her criminal history and the report and allegations of abuse or neglect from the Department. Petitioner admitted to use of a credit card of a vulnerable adult, which showed poor judgment on her part. Additionally, the close proximity of Petitioner’s most recent arrest (2012) to her request for exemption demonstrates her issues with the law are not limited to the distant past. Finally, Respondent, pursuant to section 435.07(5), Florida Statutes, considered the exemption given Petitioner by AHCA. The exemption from AHCA, however, is neither binding on the Agency nor does such exemption follow the same criteria or involve the same service population as the exemption sought from Respondent. The granting of an exemption from employment disqualification would allow Petitioner to be employed as a direct service provider to Agency clients. The undersigned appreciates Mr. Smith’s thoughtful and comprehensive assessment of Petitioner’s criminal history and fitness to hold a position of trust, and finds his testimony at hearing and reasons for recommending the denial to be credible and reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 19th day of October, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2016. COPIES FURNISHED: Rosemary Brinson 1010 Eldridge Street Clearwater, Florida 33755 Jeannette L. Estes, Esquire Agency for Persons with Disabilities 200 North Kentucky Avenue, Suite 422 Lakeland, Florida 33801 (eServed) Lori Oakley, Acting Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED. DONE and ENTERED this 16th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1984. COPIES FURNISHED William W. Tharpe, Jr., Esquire Department of Insurance Larson Building Tallahassee, Florida 32301 Dock Blanchard, Esquire Post Office Box 24 Ocala, Florida 32678 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issue for determination is whether Respondent engaged in conduct unbecoming a public servant in violation of Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida (the "Civil Service Act") and Rules 3-1.1 and 3-1.3 of the Pinellas County Sheriff's Office ("Rules 3-1.1 and 3-1.3").
Findings Of Fact Petitioner is a constitutional officer of the State of Florida who is responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times pertinent to this case, Respondent was employed by Petitioner. On September 6, 1999, Respondent responded as backup deputy sheriff to the apartment of Mr. Cornell Cunningham and Ms. Karen Stewart. The purpose of the response was to arrest Mr. Cunningham on a civil warrant for failure to pay child support. Deputy Ward Snyder was the primary deputy on the call. Deputy Snyder is also employed by Respondent. It was raining outside when the two deputies arrived at Mr. Cunningham's residence. Mr. Cunningham invited both deputies inside. Once inside, Deputy Snyder talked to Mr. Cunningham and advised him of the civil arrest warrant. Deputy Snyder also contacted the Sheriff's Office to confirm that the warrant was still valid. While Deputy Snyder was talking to Mr. Cunningham and the Sheriff's Office, Respondent conducted a security search of the residence to confirm that no one else was present in Mr. Cunningham's apartment. By the time Respondent completed the security search, Deputy Snyder had finished his telephone call. Respondent concluded his search of the residence in the kitchen. While standing in the kitchen, Respondent stood adjacent to and viewed a countertop that separated the kitchen from the dining area. The kitchen and counter top were well lit with florescent lighting. Respondent observed a marijuana seed on the countertop. Respondent picked the seed up from the countertop and held it up for Deputy Snyder to see. Respondent said, "We got a problem here." Deputy Snyder and Mr. Cunningham were standing in the dining room adjacent to the countertop that separated the kitchen from the dining room. Deputy Snyder had a clear and unobstructed view of the countertop. A Nike shoebox was on the countertop inside the kitchen. The shoebox contained a hinged top that opened from one side and also contained circular holes in the sides. Respondent, Deputy Snyder, and Mr. Cunningham were within two or three feet of the shoebox. The top on the shoebox was closed. There was no other access into the shoebox other than through the top of the shoebox. Respondent removed his flashlight from his belt, turned it on, shined the light into the holes in the side of the shoebox, and observed the contents of the shoebox. Respondent then opened the shoebox and looked inside the shoebox. Respondent observed a small bag of marijuana and a small scale inside the box. Respondent then told Deputy Snyder that there was "a problem." Respondent then showed Deputy Snyder the contents of the box. Mr. Cunningham denied ownership of the shoebox as well as any knowledge of its contents. The deputies arrested Mr. Cunningham based on the civil warrant for failure to pay child support. Mr. Cunningham protested his arrest and asserted that the matter had been taken care of. However, he did not physically resist, did not threaten either deputy, and did not display any intent to flee. Neither deputy charged or arrested Mr. Cunningham at the time with any offense related to the marijuana or the scale. Deputy Snyder transported Mr. Cunningham to the Pinellas County Jail on the original civil warrant. While Deputy Snyder was transporting Mr. Cunningham to jail, Respondent contacted Deputy Snyder by radio. Respondent told Deputy Snyder that Respondent was going to charge Ms. Stewart with criminal offenses related to the possession of marijuana and the scale. Mr. Cunningham overheard the radio conversation between the two deputies and stated that he would claim ownership of the marijuana and scale. Upon hearing this, Deputy Snyder advised Mr. Cunningham of his rights. Mr. Cunningham then denied ownership of the contraband. While Deputy Snyder transported Mr. Cunningham to jail, Respondent remained at Mr. Cunningham's residence and awaited the arrival of Ms. Stewart. With the consent of Ms. Stewart, Respondent conducted a further search of the residence. The further search revealed additional marijuana in a drawer located in the kitchen where the shoebox was located. Respondent combined the marijuana found in the drawer with the seed on the countertop and the marijuana previously found in the shoebox. Respondent then seized the contraband and proceeded to the jail where he charged Mr. Cunningham with felony possession of marijuana and misdemeanor possession of paraphernalia. Respondent prepared an arrest report stating that Respondent had observed marijuana "scattered" on top of the kitchen counter. Respondent also stated in the report that, "Laying next to the scattered marijuana in a partially opened Nike shoebox, was a clear plastic baggie filled with marijuana and also laying next to that baggie was a silver hand-held weight scale." Respondent’s supervisor, Sergeant Robert Helmick, approved the report on the same day that Respondent prepared the report. On the following day, September 7, 1999, Deputy Snyder prepared his supplemental report of the events occurring at the Cunningham residence. In his report, Deputy Snyder stated that Respondent "pointed out a seed on the kitchen countertop. There was a Nike shoebox also on the countertop. Deputy Broome used his flashlight to illuminate the inside of the box by shining the light through a hole in the box. Deputy Broome then opened the box and displayed a bag of what appeared to be marijuana and a small balance scale." Deputy Snyder’s report also recited the events occurring in his vehicle as he transported Mr. Cunningham to jail. Sergeant Helmick, who was off duty that day, did not review or approve Deputy Snyder's report. Rather, Corporal Larry Weiland approved Deputy Snyder's report. Sergeant Helmick did not see Deputy Snyder’s report until much later. Three days later, on September 10, 1999, Respondent participated in a pre-filing investigation conducted at the office of the State Attorney for Pinellas County. Assistant State Attorney Patricia Cope conducted the investigation. As part of the investigation, Ms. Cope took the sworn testimony of Respondent. In his testimony to Ms. Cope, Respondent repeated the same version of events found in his report. Respondent testified to Ms. Cope that he had observed marijuana scattered on the countertop and that the top of the shoebox on the countertop was ajar. Respondent further testified that he was able to see the marijuana and the scale inside the shoebox through the space created by the partially open top of the shoebox. Ms. Cope specifically asked Respondent whether the shoebox was open or closed in order to confirm that Respondent's search was within the scope of the plain view doctrine. Respondent testified that the shoebox was open. Ms. Cope did not speak with Deputy Snyder or review his report. As a result of the investigation and the information provided by Respondent, Mr. Cunningham was charged with felony possession of marijuana and misdemeanor possession of paraphernalia. Sometime after Ms. Cope's conversation with Respondent, Deputy Snyder spoke with Sergeant Helmick concerning the discrepancies between the two reports filed by Deputy Snyder and Respondent. Sergeant Helmick advised Deputy Snyder to allow the discrepancies to be worked out by the state attorney’s office and to allow the criminal process to run its course. Sergeant Helmick did not report the discrepancies to the state attorney’s office, to his supervisors, or to anyone else. At the time, Sergeant Helmick did not initiate any complaint or investigation against either Respondent or Deputy Snyder. In June 2000, depositions were set in the criminal prosecution of Mr. Cunningham. Ms. Cope contacted Deputy Snyder to inquire about the possibility of having the shoebox tested for fingerprints. At that time, Deputy Snyder directed Ms. Cope's attention to the discrepancies in the respective reports prepared by Deputy Snyder and Respondent. Ms. Cope reviewed the reports and the discrepancies between the two reports. Ms. Cope concluded that the discrepancies would create a problem in the criminal prosecution of Mr. Cunningham. The discrepancies between the accounts by Respondent and Deputy Snyder created the possibility that Respondent had conducted an illegal search of the shoebox that would render the evidence seized as a part of that search inadmissible. The plain view doctrine applicable to the law of search and seizure would allow the search of the shoebox if the top had been ajar and the contents of the shoebox could be observed. However, the search would not be lawful if the shoebox top was closed and observation of the contents could have only been accomplished by shining a light through the holes in the box. The differing statements in the reports of the two deputies placed the credibility of Respondent in question. No independent evidence was available, including the testimony of Mr. Cunningham, from which it could be ascertained which deputy was being truthful. The State Attorney’s Office deemed it unfair to the defendant, the court, and the witnesses to proceed on a case where the prosecution could not be certain if the evidence was properly seized. Ms. Cope referred the matter to Mr. Robert Lewis, her supervisor. Mr. Lewis reviewed the reports of the two deputies and agreed with Ms. Cope's assessment that the discrepancies precluded any further criminal prosecution of Mr. Cunningham. Ms. Cope cancelled the depositions set in the Cunningham case on the grounds that Respondent had been accused of lying and that the two investigating police officers recalled two inconsistent views of the events that occurred at Mr. Cunningham's residence. Mr. Lewis then instructed Ms. Cope to enter a nolle prosequi of the charges against Mr. Cunningham. After the State Attorney's Office filed the nolle prosequi, the State Attorney’s Office referred the matter to the Sheriff's Office. The matter was brought to the attention of Major Samuel F. Lynn, the commander of the road patrol division. Major Lynn prepared an administrative inquiry form that disclosed the allegations communicated to him by the State Attorney’s Office. Thereafter, the Administrative Investigation Division of the Sheriff’s Office ("AID") initiated an investigation. During the investigation, Respondent and Deputy Snyder each provided a sworn statement to the investigators. The investigators also obtained a sworn statement from Ms. Cope and a letter from Mr. Lewis. The investigators were unable to locate Mr. Cunningham and therefore did not interview him or ascertain his account of the matters at issue in this proceeding. During the investigation, Respondent had the opportunity to offer additional information or comments. Respondent’s attorney placed a statement on the record at the conclusion of Respondent’s sworn statement. Respondent did not offer any witnesses on his behalf or provide the investigators with any information pertaining to the location of Mr. Cunningham. At the conclusion of the investigation, the Board conducted a hearing concerning the charges against Respondent. The charges were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, subsection 4: violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.1 (Level Five violation), 006, relating to untruthfulness by being untruthful in relation to the seizure of narcotics at the Cunningham residence. Violation of Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (Level Three violation), 060, relating to standards of conduct by bringing discredit upon the Pinellas County Sheriff's Office by being untruthful and by inaccurately documenting facts and circumstances submitted to the State Attorney’s Office. Respondent was present at the hearing, had an opportunity to offer a statement, responded to questions, and presented additional evidence. At the conclusion of the hearing, the Board determined that Respondent violated the Civil Service Act and Rules 3-1.1 and 3-1.3. The violations resulted in a cumulative point total of 65 points under the progressive discipline policy of the Sheriff's office. The 65 points were added to 23 discipline points that the Sheriff's Office had previously assessed against Respondent for a total of 88 progressive discipline points. When a deputy has 88 progressive discipline points, Petitioner's progressive discipline policy authorizes discipline that ranges from a ten-day suspension to termination. Petitioner terminated Respondent's employment. Respondent violated relevant portions of the Civil Service Act and Rule 3-1.1 by being untruthful in relation to the seizure of narcotics at the Cunningham residence. Respondent conducted an improper search at the residence of Mr. Cunningham. Respondent then charged Mr. Cunningham with a felony and misdemeanor offense related to the fruits of that search. Respondent then prepared a false report relating the events occurring at Mr. Cunningham's residence and then provided false testimony under oath to the State Attorney’s Office. Respondent violated relevant portions of the Civil Service Act Rule 3-1.3 and by bringing discredit upon the Sheriff's Office. Respondent was untruthful by inaccurately documenting facts and circumstances submitted to the State Attorney’s Office. Respondent's conduct discredited the Sheriff's Office by encouraging mistrust of law enforcement officers and by creating the appearance that persons in law enforcement engage in improper tactics to effectuate an arrest. Respondent's untruthfulness resulted in the improper arrest and prosecution of an individual. Truthfulness on the part of a deputy sheriff is an important part of the job. It is necessary in order to maintain discipline and to preserve the integrity of the agency and the functions performed. Respondent's untruthfulness violated those essential elements and exposed the Sheriff's Office to the potential for civil liability for an improper arrest. Although much of Respondent's testimony was credible and persuasive, there were significant parts of Respondent's testimony that were neither credible nor persuasive. The flawed part of Respondent's testimony was inconsistent with prior statements by Respondent and with the testimony of Deputy Snyder. For the most part, no one inconsistency in Respondent's testimony, standing alone, would be sufficient to adversely affect Respondent's credibility. However, the cumulative effect of all of the inconsistencies deprives Respondent's testimony of credibility and persuasiveness concerning material issues in this case. In an earlier sworn statement to AID, Respondent testified that he found marijuana on the countertop in Mr. Cunningham's apartment, showed the seed to Deputy Snyder, and then looked inside the shoebox. At the final hearing, however, Respondent testified that he found the marijuana seed on the countertop, saw the marijuana in the shoebox, and then walked over to Deputy Snyder to show him the marijuana seed. Respondent further testified at the final hearing that he could not recall whether he picked up the seed first or saw the marijuana in the shoebox first. Respondent made inconsistent statements regarding the location of Deputy Snyder and Mr. Cunningham at the time that Respondent found the seed and searched the shoebox. At the final hearing, Respondent insisted that Deputy Snyder and Mr. Cunningham never got within ten to fourteen feet of the shoebox. In an earlier sworn statement to AID, however, Respondent indicated that Deputy Snyder and Mr. Cunningham were two to three feet from the shoebox. Respondent made inconsistent statements regarding the position of the top of the shoebox at the time that Respondent found the seed and searched the shoebox. Respondent testified at final hearing that the shoebox was open between 1.5 and 2.0 inches. In a sworn statement to AID, however, Respondent testified that the top of the shoebox was open less than one inch. Respondent made inconsistent statements regarding the manner in which he shined light from his flashlight into the shoebox. At final hearing, Respondent testified that he shined light into the holes on the side of the shoebox. In an earlier deposition, however, Respondent testified that he shined the light in the top of the shoebox where the top was open and could not remember if the shoebox had holes. Respondent made inconsistent statements regarding the location of the marijuana on the countertop. At the final hearing, Respondent indicated that the marijuana was spread out into the center of the dark countertop where there was a white paint spot, as shown in one of the photographs in evidence. However, the drawing provided during the course of Respondent's earlier deposition did not indicate that marijuana was spread into the center of the dark countertop where the white paint spot was located. The testimony of Respondent differed from that of Deputy Snyder regarding the location of the shoebox. Respondent placed the shoebox close to the wall where it may have been more difficult for Deputy Snyder to view the box. Deputy Snyder placed the shoebox in the middle of the countertop where it was more easily seen. The testimony of Respondent differed from that of Deputy Snyder regarding the vantage points of Respondent and Deputy Snyder. Respondent placed Deputy Snyder ten to fourteen feet from the shoebox and stated that Deputy Snyder could not see the shoebox or the marijuana from that vantage point. Deputy Snyder placed himself within two to three feet of the shoebox and stated that he had an unobstructed and clear view of the countertop and the shoebox. Deputy Snyder's testimony was consistent with an earlier sworn statement to AID by Respondent indicating that Deputy Snyder and Mr. Cunningham were two to three feet from the shoebox. See Finding of Fact 43. The testimony of Respondent differed from that of Deputy Snyder regarding the amount of marijuana on the countertop. Respondent stated there was a considerable amount or marijuana on the countertop. Deputy Snyder stated there was no marijuana on the countertop except the seed displayed to him by Respondent. The testimony of Respondent differed from that of Deputy Snyder regarding the actions taken by Respondent in looking into the shoebox. Respondent testified that he identified the debris, saw the marijuana in the shoebox, showed the seed to Snyder, and then looked into the shoebox. Deputy Snyder testified that Respondent showed him a seed, shined his light into a hole in the shoebox, and then opened the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding the actions of Respondent after discovering the marijuana and the shoebox. Respondent claimed he walked from the kitchen into the living and dining area to display the seed to Deputy Snyder. Deputy Snyder testified that Respondent remained in the kitchen and displayed the seed across the countertop. The testimony of Respondent differed from that of Deputy Snyder regarding the issue of whether Respondent had his flashlight out before he looked into the shoebox or removed it in order to look inside the shoebox. Respondent testified he had the flashlight out the entire time he was in the residence. Deputy Snyder stated that Respondent removed the flashlight from his belt in order to look into the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding the issue of whether Deputy Snyder was on the telephone when Respondent observed the marijuana and shoebox and pointed these items out to Deputy Snyder. Respondent stated that Deputy Snyder was on the telephone when these events occurred. Deputy Snyder testified that he had completed his call by the time Respondent arrived in the kitchen. The testimony of Respondent differed from that of Deputy Snyder regarding the ability of Deputy Snyder and Mr. Cunningham to be in the dining room and close to the countertop. Respondent claimed that the dining room table and chairs did not allow sufficient room for Deputy Snyder and Mr. Cunningham to be within two or three feet of the countertop in the dining room. Deputy Snyder and other testimony by Respondent concerning the dimensions of the dining room and table and chairs indicated there was sufficient room for Deputy Snyder and Mr. Cunningham to stand in the dining room within two or three feet of the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding Respondent's testimony that he searched the shoebox, in part, because he was concerned over the existence of booby traps in the shoebox. Deputy Snyder saw no such concern indicated in Respondent’s actions. Respondent's testimony that he was concerned the shoebox contained booby traps is neither credible nor persuasive. Respondent testified that the room was sufficiently well lit to allow him to clearly see the marijuana inside the partially open shoebox without shining his flashlight into the shoebox before opening it. Respondent attempted to explain why he used his flashlight in a well-lit kitchen by expressing concern that the shoebox may have contained booby traps. Regarding the discrepancies between the testimony of Respondent and Deputy Snyder, there is no apparent motive for Deputy Snyder to fabricate his version of the events or to attempt to create any form of disciplinary problem for Respondent. Respondent had no prior experience with Deputy Snyder that would create a reason for Deputy Snyder to be untruthful. Respondent suggested that Deputy Snyder fabricated his report and testimony in exchange for a transfer to a position as a detective. That testimony is neither credible nor persuasive. Deputy Snyder’s transfer occurred months before any concerns arose pertaining to Respondent. There is no evidence that Deputy Snyder played any role in the initiation of the investigation. Deputy Snyder's initial disclosure to his supervisor did not result in any investigation or action against Respondent. The transfer to the detective unit was a lateral transfer without any increase in rank, pay, or benefits. The evaluation system in effect at the Sheriff's Office provided a specific component for self-initiated arrests. The arrest of Mr. Cunningham in this case falls into the category of self-initiated arrests and could have resulted in a positive evaluation component for Respondent, who already had 23 disciplinary points against him. Respondent has a prior disciplinary history. In June 1999, Respondent received a one-day suspension and five disciplinary points for violating rules that are not relevant to this proceeding. In January 2000, Respondent received a three- day suspension and 15 disciplinary points for violating rules that are not relevant to this proceeding. The two violations resulted in 20 progressive points with a range of discipline from reprimand to a three-day suspension. In August 2000, Respondent received a seven-day suspension for violating rules that are not relevant to this proceeding. The violations consisted of three level three violations resulting in the assignment of 40 disciplinary points. The 40 points were combined with ten "modified points" from the prior violations and resulted in a total of 50 progressive points with a range of discipline from a five-day suspension to termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of conduct unbecoming a public servant and terminating Respondent's employment. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 May, 2001. COPIES FURNISHED: Richard C. Millian, Esquire Joseph A. Corsmeier, Esquire Tew, Zinober, & Barnes, L.L.P. 2655 McCormick Drive, Prestige Professional Park Clearwater, Florida 33759 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
