The Issue Whether Petitioner is eligible for an exemption from disqualification.
Findings Of Fact By letter dated August 28, 1997, Petitioner's employer, Volunteers of America, notified Petitioner that he was ineligible for continued employment in a position as a caretaker of children, disabled adults or elderly persons. However, the letter advised Petitioner that he could request an exemption from disqualification from the licensing agency. In September 1997, Petitioner requested an exemption from disqualification. Respondent, Department of Children and Family Services, denied the exemption based on the fact that on January 9, 1997, Petitioner had been charged with battery. The charge arose from an incident of domestic violence. As a result of the charge, on February 7, 1997, Petitioner entered a plea of nolo contendre to the offense of battery, and was placed on probation for one year. One condition of Petitioner's probation was that he enroll in a domestic violence intervention program. By September 22, 1997, Petitioner had complied with all conditions of his probation. By Order entered October 8, 1997, Petitioner's probation was terminated. The policy of Respondent is to require a one-year time lapse between termination of probation and granting the exemption from disqualification. Petitioner requested an exemption from disqualification in September 1997, and the request was considered by Respondent's Exemption Review Committee (Committee) on October 2, 1997. At the time Petitioner's request was heard by the Committee, Petitioner was still on probation and less than one year had elapsed since he was charged with battery. Even if, at the time of Petitioner's request for exemption from disqualification was heard, more than one-year had elapsed, Petitioner failed to present sufficient evidence to demonstrate his rehabilitation. Numerous letters of support attesting to Petitioner's good character; exemplary work record; and his successful completion of a domestic violence intervention program were presented at hearing. However, most of the letters are based on those individuals' experiences and relationships with Petitioner prior to Petitioner's completing his probation. Petitioner appears remorseful about his conduct and sincere in his desire to work with youngsters. Nonetheless, Petitioner presented no evidence of rehabilitation during the five months since his probation was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services, enter a Final Order denying Petitioner, Eric Truitt, an exemption from disqualification from employment in a position designated by law as one of trust or responsibility. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998. COPIES FURNISHED: Eric Truitt, pro se 1771 Harbor Drive Clearwater, Florida 34615 Kathleen Harvey, Esquire Department of Children and Family Services 11351 Ulmerton Road Largo, Florida 33778 Gregory A. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: On November 27, 1993, Petitioner was living in an apartment in Florida City. She shared the apartment with her boyfriend. Some time that day (November 27, 1993), Petitioner's boyfriend became intoxicated and physically removed Petitioner from their apartment against her will. He then locked the doors and would not allow Petitioner to reenter the apartment. Her boyfriend's actions, understandably, angered Petitioner. Seeking revenge, she obtained a pair of pliers and a screwdriver and used them to break the windows of her boyfriend's vehicle. The police were called to the scene. When the police arrived, Petitioner still had possession of the pliers and screwdriver. She was holding them in her right hand. One of the police officers who arrived on the scene approached Petitioner and placed a handcuff around her left wrist. As the officer attempted to place the other cuff around Petitioner's right wrist, Petitioner pulled her right hand (in which she held the pliers and screwdriver) away from the officer and moved it above her head. Petitioner's uncooperative and threatening conduct prompted the officer and his partner to use physical force against Petitioner and a scuffle ensued. The officers ultimately placed Petitioner under arrest. As a result of the incident, Petitioner was charged with the felonies of aggravated assault on a police officer and resisting an officer with violence. She was also charged with disorderly conduct, a misdemeanor. Petitioner did not believe that, if she contested the charges against her, she would prevail. Therefore, acting upon the advice of her appointed attorney, she pled nolo contendre to the charges. On January 21, 1994, Petitioner's plea was accepted, adjudication of guilt was withheld, and she was placed on probation for a period of one year. During the time that she was on probation, Petitioner attended anger control classes. By her own admission, she did not benefit from attending these classes. On July 21, 1994, Petitioner's probation officer, in writing, informed the court that Petitioner had "complied with the rules and regulations of probation and [was] no longer in need of probation supervision." She therefore recommended that Petitioner be discharged from probation. That same day, July 21, 1994, the court entered an order following the probation officer's recommendation and discharging Petitioner from probation. On March 5, 1995, Petitioner was living with a man who, like her former boyfriend, had a drinking problem. On this particular day (March 5, 1995), the man was verbally harassing Petitioner while she was laying down on the couch and trying to sleep. Annoyed by these antics, Petitioner took off one of the sandals she was wearing and threw it at the man. The sandal hit the man in the area of his eye. The man reported the incident to police and Petitioner was arrested. Petitioner was charged with misdemeanor battery, but the charge was subsequently dismissed. On February 3, 1997, Petitioner was involved in another incident that led to her arrest. On that date, Petitioner's 23-year old son and one of her neighbors became involved in a physical altercation. Petitioner intervened on her son's behalf and slapped the neighbor. The neighbor's wife, who was pregnant at the time, thereupon entered the fray and started to physically attack Petitioner. In attempting to defend herself during the melee, Petitioner shoved the neighbor's pregnant wife. Petitioner was arrested for aggravated battery on a pregnant person. The matter, however, was not prosecuted. For approximately eight months prior to July of 1997, Respondent was employed at Homestead Nursing Home. She was terminated from her position, effective July 1, 1997, after she was involved in a fist fight with another employee in a hallway at the nursing home. The other employee threw the first blow after Petitioner had verbally confronted her concerning the use of a linen cart that Petitioner needed. On August 25, 1997, Petitioner started working at an intermediate care facility operated by Sunrise Community, Inc. (Sunrise). In the latter part of October of 1997, after a background screening investigation by Sunrise had revealed that she was not qualified to serve in her position because of her "criminal background," Petitioner was terminated from her position. Petitioner has not clearly and convincingly demonstrated that, since the November 27, 1993, incident that led to criminal charges being filed against her (including the charge of aggravated assault on a police officer), she has rehabilitated herself to the extent that that she would not present a danger if her exemption request was granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying the exemption that Petitioner has requested. DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998.
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility. Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms. O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner. Ms. Banton did what she had been directed to do. Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000 COPIES FURNISHED: Priscilla M. Young 312 Lime Avenue Orlando, Florida 32805 Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues for determination are whether Respondent violated the Pinellas County Sheriff's Office Civil Service Act by engaging in conduct unbecoming a public servant and whether Respondent violated the Pinellas County Sheriff's Office rules and regulations; and, if so, whether the proposed penalty is reasonable.
Findings Of Fact Petitioner is a constitutional officer for 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, Petitioner employed Respondent as a Detention Deputy. Effective January 31, 1999, Petitioner promoted Respondent from the rank of sergeant to the rank of lieutenant and assigned Respondent to the Corrections Training Section. Respondent reported to Director Herman Vincent. The promotion was subject to a one-year probationary period pursuant to Laws of Florida, Chapter 89-404, Section 4 (3). As a lieutenant, Respondent supervised a number of employees of lesser rank that were responsible for other functions within the Training Section. Among those were Sergeant Wayne Poorman (Poorman), and Detention Deputies Mechelle Sabin (Sabin), Richard Main (Main), David Clarke (Clarke), and David Chant (Chant). In May 1999, Petitioner reassigned Sabin from her position at the Detention and Corrections Bureau to the Corrections Training Section. Sabin had previously applied for the position and was recruited for the position by Respondent. Even before the selection process had begun, Respondent indicated his intention to select Sabin for the position in the Training Section. In June 1999, while at lunch with Sabin, Respondent made unwanted and unsolicited sexual advances to Sabin. Respondent stated that he would "like to get into [Sabin's] pants" and made related statements. Respondent also engaged in other sexually related conversations with Sabin in which Respondent discussed his own sexual practices between himself and his wife and inquired of certain aspects of Sabin's sexual life with her husband. Sabin initially attempted to "laugh off" the statements of Respondent, but he returned to the subject again and again. Sabin ultimately rebuffed his advances. Respondent did not renew his advances, but began to harshly criticize Sabin and to question her work. None of Sabin’s co-workers or her immediate supervisor, Poorman, were similarly critical of Sabin. They found her work to be at least satisfactory and oftentimes superior or excellent. Contrary to Respondent’s characterization of Sabin as "resistant," Sabin's co-workers found her to be eager to help. Respondent could not identify any significant deficiency in Sabin’s job performance. Over time, Sabin grew uncomfortable in the presence of Respondent. Each of Sabin’s co-workers observed the change in the working relationship between Sabin and Respondent. They further observed the apparent discomfort of Sabin while in the presence of Respondent and her reluctance to engage in eye contact with Respondent. On one occasion, Respondent refused to assist Sabin in performing a new task with which she was unfamiliar. The task related to the processing of forms for new recruits. Instead of responding to her requests for guidance in processing the forms or telling her what to do with the forms, Respondent repeatedly stated ". . . think about it, Mechelle, you really need to tell me where this needs to go." Respondent did this in the presence of recruits who Sabin was responsible for processing and training. On other occasions, Respondent chided Sabin for refusing to look him in the eye, and badgered her to a degree beyond what any of her co-workers deemed appropriate and in a manner unlike that demanded of other employees. On one occasion, the badgering escalated to the point that Respondent "got in Sabin’s face" and backed her down a hallway as he spoke to her. Respondent disapproved of a request by Sabin to assist in and attend a meeting regarding a field-training program. Respondent made comments about the sexual orientation of the sergeant with whom Sabin sought to work. On another occasion, Respondent asked Sabin to leave a room ahead of others. Respondent explained to everyone in the room, including Sabin, that ". . . the view was better from behind." In August 1999, Poorman asked Sabin to teach a class for him due to a conflict in Poorman's schedule. Poorman neglected to advise Respondent of the change in assignment. When Respondent looked for Sabin at the office, he was unable to locate her. At a later meeting of the training staff, Respondent complained that Sabin had not made Respondent aware of the schedule changes. When Poorman sought to defend Sabin and advise Respondent that the error was his, Respondent responded by stating, ". . . don’t fucking stick up for her. She has a goddamn mouth. She can speak for herself if she has something to say." The comments were made in the presence of other persons assigned to the Training Section. On another occasion, Sabin agreed to perform a task related to completing forms for recruits to obtain their gym clothes. Respondent refused to provide Sabin with the paperwork she needed to complete the task. When explaining tasks to Sabin, Respondent repeatedly asked in a demeaning manner, "Do you understand what I am saying to you?" Respondent engaged in other behavior toward Sabin in the presence of other employees that was demeaning and disrespectful. Respondent did not engage in similar treatment of other personnel in the Training Section. Respondent contended that Sabin needed to be "toughened up." However, no other supervisor perceived such a need. Sergeant Poorman was Sabin’s immediate supervisor and Respondent’s immediate subordinate and attempted to resolve the conflict without success. After Respondent repeatedly asked Sabin if she wanted to transfer out of the Training Section, Sabin requested reassignment from the Section in an effort to escape the environment. Respondent then sought to enforce a one or two-year commitment to the Training Section that was customary for those transferring into the Section. This occurred during a meeting between Respondent, Sabin, and Poorman. After further discussion, Respondent agreed to allow Sabin to remain in the unit for the remainder of her one-year commitment. However, Respondent later stated to Poorman that Respondent wanted to transfer Sabin back to the jail if Sabin requested reassignment to a position in road patrol. At this point, Sabin told Poorman of the advances made by Respondent and of the conduct that followed. Poorman reported the matter to his supervisor, Director Vincent. Director Vincent contacted the Inspections Bureau, Administrative Inspections Division of the Pinellas County Sheriff’s Office. The Administrative Inspections Division conducted an investigation into the conduct of Respondent. The initial allegations against Respondent included charges that Respondent propositioned Sabin and made other inappropriate comments to her with regard to his sexual life and practices and with regard to her sexual life and practices. Subsequently, and during the course of the investigation, additional allegations were made against Respondent. The subsequent allegations charged that Respondent treated Sabin more harshly than her male counterparts after she rebuffed his advances. The allegations also charged that Respondent made derogatory comments about another female employee, Donna Hughey. Respondent allegedly stated that Hughey had engaged in inappropriate conduct in order to obtain a desired assignment. Petitioner expanded the scope of the investigation conducted by the Administrative Inspections Division to include the new allegations. Representatives of the Administrative Inspections Division notified Respondent of the new allegations prior to his interview. During the course of interviews with other persons assigned to the Training Section, it was revealed that Respondent stated to Sabin that on one occasion a female applying for a position with the Petitioner placed her head in his lap and made reference to what she would do to obtain the position sought. In his statement to Sabin, Respondent did not identify the person who engaged in this conduct, but did describe a female applying for the position in the Training Section. In a similar statement to Poorman, Respondent identified the female applying for the Training Section as Donna Hughey. Respondent cautioned each of these persons against telling anyone else. Hughey denied ever engaging in such conduct and expressed a desire to file a complaint with regard to these allegations made by Respondent. As a result of the investigation, Respondent was provided a Board hearing concerning the charges against him. At the conclusion of the hearing, the Board determined that Respondent violated portions of the Pinellas County Sheriff’s Office Civil Service Act and the Rules and Regulations of the Pinellas County Sheriff’s Office. The Board determined that Respondent committed three violations. First, Respondent violated 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, provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff by engaging in conduct unbecoming a public servant. Second, Respondent violated Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (a Level Three violation), 060, by bringing discredit to the agency as a result of inappropriate comments to and about other members, i.e., Donna Hughey. Third, Respondent violated Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (a Level Three violation), 069, by failing to treat Sabin with appropriate respect. The Board did not discipline Respondent for the conduct related to unwelcome and unsolicited sexual remarks made to Sabin. The Board found those charges were unsubstantiated by the investigation. The violations resulted in a cumulative point total of 25 points. A 25-point violation authorizes a suspension without pay of up to five days. Respondent had no prior discipline during the course of his employment with Petitioner. The Board imposed disciplinary action of a five-day suspension which is the maximum discipline allowed under Petitioner's rules. The Board based its decision on the nature of Respondent’s conduct, his status as a supervisor, and his rank. The Board also demoted Respondent to the rank of Detention Sergeant and assigned him to the Detention and Corrections Bureau of the Pinellas County Sheriff's Office. During the investigation, the Board extended Respondent’s one-year probationary period in his promoted position of lieutenant for an additional six months until July 31, 2000. Pursuant to Laws of Florida, Chapter 89-404, Section 4 (4), it is within the discretion of Petitioner to extend the probation of a promoted employee for six months beyond the initial one-year probationary term. Respondent remained in the extended probationary rank of lieutenant at the time of his Board hearing and at the time of the imposition of discipline by Petitioner. The nature of the conduct engaged in by Respondent, particularly as it related to his actions and methods as a supervisor, warranted a five-day suspension without pay and the loss of Respondent's promotion. Respondent engaged in a method of supervision designed less to train and guide and more to intimidate and control. Since Respondent’s demotion and reassignment from the Training Section, the Section again operates as a team without the level of agitation seen during Respondent’s tenure as supervisor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff’s Office enter a Final Order finding Respondent guilty of the conduct alleged in the charging document, suspending Respondent for five days without pay from his employment as a Detention Deputy with the Pinellas County Sheriff’s Office, and demoting Respondent from his probationary rank of lieutenant to the rank of sergeant. DONE AND ORDERED this 26th day of June, 2000, 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 26th day of June, 2000. COPIES FURNISHED: B. Norris Rickey, Esquire Assistant County Attorney 315 Court Street Clearwater, Florida 33756 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler, et al. 1669 Mahan Center Boulevard Tallahassee, Florida 32308 Thomas E. Reynolds, Esquire Law Offices of Edward D. Foreman, P.A. 100 Second Avenue, North, Suite 300 Clearwater, Florida 33762 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
The Issue Whether Petitioner's request for exemption pursuant to Section 400.512, Florida Statutes, should be granted.
Findings Of Fact On May 21, 1990, Petitioner, Orlando Rueda (Rueda), was arrested on charges of sexual battery on a child. The charges arose from incidents which occurred in 1983. On September 5, 1991, Rueda plead nolo contendere to five counts of attempted sexual battery on a child, Sections 777.04(1) and 794.011(2), Florida Statutes, and to two counts of indecent assault, Section 800.041(1), Florida Statutes. Adjudication was withheld, and Rueda was sentenced to five years probation, the terms of which included no contact with the victim or his family, no employment involving children, and a psychological evaluation. Rueda maintains that he is not guilty of the crimes for which he pled nolo contendere but states that because of financial difficulties in continuing with his defense and of the possibility that he could be sentenced to life imprisonment if he were found guilty, he pled nolo contendere rather than go to trial. On August 27, 1993, Rueda was arrested for driving with a suspended license. On September 17, 1993, his probation officer executed an affidavit of violation of probation indicating that Rueda violated probation by driving with a suspended license and failing to file with his probation officer a full report of having been arrested for driving with a suspended license. Rueda was arrested and charged with violation of probation. On October 18, 1993, Rueda admitted to the charge of violation of probation. The court revoked Rueda's probation and sentenced him to another five-year term of probation and ordered Rueda to attend a sex offender program at R.E.A.C.H. once a week. The court modified the probation by order dated May 31, 1994, to require attendance at the Fifth Street Counseling Center in place of attendance at R.E.A.C.H. Rueda was to remain in the Fifth Street Counseling Center program until further notice from the program. The program at the Fifth Street Counseling Center was headed by William Rambo, a clinical social worker. Rueda began his treatment with Mr. Rambo in June 1994. The treatment program is for a minimum of four years. The first phase, which usually lasts a year, consists of intensive weekly therapy sessions in which the patient deals with the allegations of the original sexual offense. The second phase is designed to last a minimum of one year and is a less intensive phase with bi-weekly group sessions. The emphasis in the second phase is on current functioning and monitoring of the patient's stability. The final phase is designed for two years and allows the patient to demonstrate continued stability. On January 31, 1996, Rueda admitted to his probation officer that he had used cocaine on January 24, 1996. Rueda also admitted to the use of cocaine to a Secret Service Agent, who was questioning Rueda about an incident involving a counterfeit fifty-dollar bill. Rueda said that he had been drinking with friends when one of them went to purchase cocaine. The drug was put into a cigarette, which Rueda and his friends smoked. As a result of the incident involving his use of cocaine, on February 26, 1997, the court ordered two years of community control, followed by ten years of probation which began on April 4, 1996. Community control is a form of house arrest and sometimes involves wearing an electronic monitoring device. Rueda was required to wear an electronic monitor for one year. Barring any further violations of probation, Rueda's probation is due to expire in 2008. On May 12, 1997, Rueda wrote a letter to the Respondent, Agency for Health Care Administration (Agency), requesting an exemption and outlining his criminal background. His letter did not include any information concerning the January 1996, cocaine- related violation. On December 8, 1997, the Agency granted Rueda an informal hearing before an informal hearing committee on his request for an exemption. During the informal hearing, the committee specifically asked Rueda to describe any special conditions of his probation. Petitioner did not volunteer that at the time of the informal hearing that he was being required to wear an electronic monitor. The informal committee had learned about the electronic monitor from Rueda's probation officer. Rueda did not reveal that he was wearing a monitor until the committee specifically asked whether he was under electronic monitoring. Rueda is still in the first phase of his treatment with Mr. Rambo. Part of the reason that he has not completed the first phase is that each time he violated probation, the probation period would begin anew, and Rueda would have to begin the first phase anew. However, based on the testimony of Mr. Rambo, Rueda has made progress in his treatment, but he has not completed his treatment program. Other than the incidents for which Rueda plead nolo contendere, Rueda has not been involved in any incidents of sexual battery or indecent assault.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Orlando Rueda's request for an exemption. DONE AND ENTERED this 23rd day of December, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1998. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Jennifer A. Steward, Senior Attorney Agency for Health Care Administration 1400 West Commercial Boulevard, Suite 110 Fort Lauderdale, Florida 33309 Kevin J. Kulik, Esquire 600 South Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33301
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The licensee At all times material hereto, Respondent, Jill Sousa Barker, was licensed by Petitioner, Department of Insurance (Department), as a general lines agent. Such licensure dates to May 10, 1993, and, but for the pending action, Respondent has suffered no other complaint or disciplinary action. The violations On February 11, 1997, an Information was filed in the Circuit Court, Twentieth Judicial Circuit, Lee County, Florida, Case No. 97-0058CF, charging Respondent with two counts of trafficking in cocaine (28 grams or more), contrary to Section 893.135(1)(b), Florida Statutes, and one count of sale or delivery of cocaine, contrary to Section 893.13(1)(a), Florida Statutes. Specifically, the Information alleged that: Count 1 [Respondent] did unlawfully and knowingly sell, manufacture, or deliver a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about November 7, 1996 Count 2 [Respondent] did unlawfully and knowingly have in her actual or constructive possession, a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about January 8, 1997 Count 3 [Respondent] did unlawfully sell or deliver a controlled substance, to-wit: cocaine, on or about December 18, 1996 The offenses alleged in Counts 1 and 2 constituted the commission of a felony of the first degree, and the offense alleged in Count 3 constituted the commission of a felony of the second degree. On September 3, 1997, Respondent entered a plea of nolo contendere to Count 3, as charged, and a plea of nolo contendere to the lesser included offense (Counts 1 and 2) of sale and delivery of cocaine (contrary to Section 893.13(1)(a), Florida Statutes), a second degree felony.1 The court entered an order withholding adjudication of guilt on each count, placed Respondent on probation for a period of four years under the supervision of the Department of Corrections (with early termination after two years if in compliance with all terms and conditions imposed), and assessed a fine and costs totaling $561. Respondent successfully completed her probation within one year, and was granted early termination by the court on June 15, 1998. At no time did Respondent inform the Department in writing of having pled nolo contendere to the aforesaid felonies.2 Aggravating and mitigating factors Here, the seriousness of Respondent's criminal acts cannot be gainsaid, nor may they be casually dismissed (as counsel suggests in Respondent's Proposed Recommended Order at page 2) as "part of a sting operation and as such . . . a 'victimless' act." Rather, Respondent acted as a middleman on three occasions, purchased cocaine (up to one ounce) for a dealer (a "person involved in the regular purchase and sale of . . . cocaine") who she believed was otherwise unable to acquire the product, and for which service she was paid a fee ($300 to $500 for the one ounce transaction). That the cocaine was not sold or further distributed, since the dealer was (unbeknownst to Respondent) operating under cover as an informant for the police department, does not render the crime less offensive. Notwithstanding, Respondent has suffered and paid a criminal penalty for her conduct and has demonstrated, based on objective evidence of right conduct, that she is truly remorseful for her actions and that she is worthy of holding a position of trust and confidence. Consequently, although suspension may be mandatory for a violation of Subsection 626.611(14), Florida Statutes, as discussed infra, it will serve no useful purpose. Therefore, any suspension should be de minimus. In reaching the foregoing conclusion, it is observed that, while serious, the isolated events which gave rise to the criminal charges filed against Respondent do not fairly reflect her character. Rather, history reveals that Respondent, age 34 at the time of hearing (date of birth September 17, 1964), has been gainfully employed (at various times, in various capacities) in the insurance industry since age 18, and that she suffered a brief, abusive marriage in the late 1980s, which resulted in the birth of a son, Trent. When Trent was 10 months of age, Respondent left her abusive husband, and moved (from Miami, Florida) to North Carolina to reside with her sister. There, Respondent successfully gained licensure as a property and casualty agent, as well as a life and health agent, and was employed by State Farm. Respondent was then, and continues to be, the primary support for herself and her son, and she enjoys little or no assistance from her former husband. Respondent remained in North Carolina approximately two years, and then returned to Miami, Florida, where she was employed by the Simons and Rose Insurance Agency. Following Hurricane Andrew (August 24, 1992), and the loss of all her possessions, she moved to Fort Meyers, Florida, to reside with her brother. There, Respondent successfully completed the 240-hour course and examination to qualify for licensure in Florida, and on May 10, 1993, was licensed as a general lines agent. Following licensure, Respondent was employed by AAA Insurance for two and one-half years, and thereafter by Tim Shaw Insurance Group, Inc. Respondent was, and continues to be, a model employee, a heavy producer, and is highly regarded among those who know of her. Apart from her continued employment, and support and participation in her son's activities (school, karate, hockey, baseball, and Cub Scouts), Respondent has, since the incidents in question, also committed to regular attendance at Lighthouse Baptist Church. There she has also taught vacation bible school, and has sat as a member of the building committee, as well as the finance committee. Moreover, Respondent has continued to attend night school at Edison Community College, and expects to receive an associate degree (A.S.) in computer programming on December 10, 1999. In all, Respondent has evidenced admirable traits, including resilience, tenacity, and character, which should not be overlooked or ignored because of the isolated incident in question. Given those traits, as well as her evident remorse, there is no reason to believe Respondent would engage in any further misconduct. Moreover, Respondent is painfully aware that, absent licensure, she would lose the means to support her family, and would most likely lose her home and the opportunity to complete her college program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds the Respondent guilty of violating the provisions of Subsections 626.611(14) and 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating the provisions of Subsection 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. All charges that Respondent's conduct also violated the provisions of Subsections 626.611(1), (7), or (13), and 626.621(2), Florida Statutes, should be dismissed. It is further RECOMMENDED that, as a penalty for such violations, Respondent's license be suspended for one day, followed by a one-year term of probation. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 September, 1999.
