The Issue The issues are whether Respondent has been found guilty of crimes directly relating to the practice of public accounting, in violation of Section 473.323(1)(d), Florida Statutes; has performed a fraudulent act while licensed to practice public accounting, in violation of Section 473.323(1)(k), Florida Statutes; has failed to maintain good moral character, in violation of Section 473.323(l)(m), Florida Statutes; all as charged in the Administrative Complaint dated May 23, 2000, and if so what penalty should be imposed.
Findings Of Fact At all material times, Respondent, John C. Mese (Mese) has been licensed as a certified public accountant, holding license number AC000247000. The record reveals no prior discipline. Mese is presently incarcerated in the Dade Correctional Institute, having been convicted on May 5, 1998, in the Circuit Court of the 11th Judicial Circuit of attempted first degree murder; kidnapping, robbery and extortion with a firearm; nine counts of money laundering; and 18 counts relating to forgery or the uttering of forged instrument(s). Mese was convicted of additional charges which were the subject of a judgment notwithstanding the verdict entered by the trial court on July 20, 1998. Mese's appeal of the foregoing charges is, as of this writing, pending in the Third District Court of Appeal. From the time of his arrest through the present, Mese maintains his innocence of all charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Accountancy enter a final order finding Respondent guilty of violating the provisions of Chapter 473.323(1), Florida Statutes (1994), as alleged in Counts I, II, III, and IV of the Administrative Complaint; impose a administrative fine of $5000; and revoke Respondent's license with leave to reapply in the event his conviction is reversed or the criminal charges are otherwise disposed of in Mese's favor. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 28th day of December, 2000. COPIES FURNISHED: David K. Minacci, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 John Carl Mese MI5699 Dade Correctional Institute Suite 300, Unit H 3108 19000 Southwest 377th Street Florida City, Florida 33034 Martha Willis, Executive Director Division of Certified Public Accounting Department of Business and Professional Regulation 2610 Northwest 43rd Street, Suite 1A Gainesville, Florida 32606 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
The Issue The issue for disposition is whether Petitioner, Mr. Franqui, is entitled to licensure as a real estate salesperson in the State of Florida.
Findings Of Fact Jose C. Franqui, a resident of Kissimmee, Florida, was previously licensed as a real estate broker in the State of New York until 1979. When the economy and interest rates slowed real estate sales, he moved back to his native Puerto Rico. Later, he returned to live in Florida and, on March 3, 1997, he applied to the Florida Real Estate Commission for licensure as a real estate salesperson. The application, signed by an affidavit by Mr. Franqui, includes question no. 9 which inquires whether the applicant " . . . [Has] ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. . . ." In boldface print, the question on the application form warns that the answer will be checked against local, state, and federal records and that failure to answer accurately could cause denial of licensure. Mr. Franqui answered "no" to question No.9. In 1966 in New York, Mr. Franqui was charged and convicted of carrying concealed tear gas. He was fined $200. On May 14, 1978, also in New York, after an altercation with his wife, Mr. Franqui was arrested for assault. He spent a night in jail and was released. On August 11, 1978, he pled guilty to the lesser offense of harassment and received a "conditional discharge." Neither of these incidents was disclosed by Mr. Franqui on his application for licensure. Instead, he claims he did not remember the disposition of the assault charge and that he considered the tear gas charge too remote in time to be of any consequence. The explanations do not excuse Mr. Franqui's patent disregard of the terms of the question at issue. Nor does the testimony of Mr. Umpierre, a co-worker, that ". . . Franqui is a nice, honest person . . ." obviate the fact of Mr. Franqui's falsehood.
Recommendation Based on the foregoing, it is recommended that the agency enter its final order denying Jose C. Franqui's application for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 8th day of October, 1998. COPIES FURNISHED: Jose C. Franqui, pro se 3511 Bonaire Boulevard Apartment 2401 Kissimmee, Florida 34741 Manuel E. Oliver, Assistant Attorney General Department of Legal Affairs Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares, Director Division of Real estate Department of Business and Professional regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented in this consolidated proceeding are whether Respondent committed the acts and violations alleged in the two administrative complaints, and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 5802478, and operates as 459 Chinese Restaurant at 657 North Primrose Drive, Orlando, Florida 32803 (the restaurant). A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on October 28 and 29, November 5, and December 1, 2004. The Specialist inspected the restaurant again on April 26 and 27, 2005. On December 1, 2004, Respondent committed three violations of applicable statutes and rules. On April 27, 2005, Respondent committed another violation. Each violation was an uncorrected violation that first occurred in previous inspections. On December 1, 2004, Respondent did not document that an employee at the restaurant had received training in professional hygiene and food-borne disease prevention in violation of Florida Administrative Code Rule 61C-4.023(4)(a). This violation is a critical violation. Petitioner's witness identified a critical violation as a violation that is an immediate danger to the public safety. On December 1, 2004, a grease buildup existed on the kitchen wall near the fryer. Food-debris buildup was also present on the floors in the corner of the kitchen. Neither of these violations is a critical violation. On April 27, 2005, Respondent maintained eggs at a temperature of 64 degrees Fahrenheit, rather than 45 degrees, in violation of Rule 3-5.01.16(B) of the Food Code. This is a critical violation. Several mitigating factors are evidenced in the record. The violations did not result in actual harm. Respondent has no prior discipline. The violations are not continuing or ongoing violations. The only aggravating factor is that two of the violations are critical violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in each Administrative Complaint, requiring Respondent's representative to attend the educational program prescribed in Petitioner's PRO, and imposing an administrative fine of $1,300, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S 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 21st day of December, 2005. COPIES FURNISHED: Mary Quinn 459 Chinese Super Buffet 657 North Primrose Drive Orlando, Florida 32803 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Joan B. Cross, is a registered real estate salesperson holding certificate number 0018497. On her application for registration in November, 1972, in answer to question 9 pertaining to having been arrested for or charged with the commission of an offense against the laws of the municipality or state, she answered "yes". She completed the "If yes, state details in full" question with "careless driving, 7-27-69 DWI 1970". Exhibit 2, Certified Copy of Court Record, shows that on May 6, 1965 Respondent was convicted of disorderly conduct and fined $15.00. Exhibit 3 and 4, Certified Records from the Criminal Court of Record, show that on June 9, 1969 Respondent was charged with, and found guilty of, unlawful possession of marijuana and of contributing to the dependency of minors. Adjudication of guilt was withheld and Respondent was placed on probation for 18 months. Testifying in her own defense Respondent acknowledged both offenses. With respect to the disorderly conduct charge, she stated she forgot to include that on her application. Following a lunch birthday party the group retired to a bar and when they became too noisy the police came and took them to the police station. With respect to the charges of possession of marijuana and barbiturates she testified that she was represented by counsel who advised her after the trial that she was not adjudicated and that she could forget the incident. She testified that she understood all record of this incident had been expunged, and that she could forget it. She also testified she didn't fully understand withholding adjudication of guilt. In this regard it is noted that she pleaded guilty to possession of marijuana and nolo contendere to the charge of contributing to the dependency of minors.
The Issue Whether Petitioners are entitled to recover costs and attorney's fees against Respondents and, if so, in what amount.
Findings Of Fact Respondents, Carrol G. Allen and Willis D. Conner, former employees of Polk County (County), filed verified Complaints on June 8, 1995, with the Ethics Commission against Petitioners, Jerry Atterson, Michael J. Mahler, and Charles L. Saddler, III. At the time the Complaints were filed, Petitioner were public employees and subject to the Code of Ethics. The Complaints against the Petitioners were substantially similar and alleged that Petitioners violated Section 112.313(6), Florida Statutes. Specifically, Respondents alleged that Petitioners committed the following acts: Started and encouraged baseless rumors and allegations. Encouraged subordinates to fabricate false reports of misconduct involving pilots. Rewarded subordinate employees monetarily who assisted the Respondents with the agenda against the pilots. Encouraged subordinates to supply false and misleading information to assist in the eventual dissolution of the entire flight department on the pretext of economic downsizing. Retaliated against the pilots because said plots had reported chemical spills, safety violations, aircraft tampering, and conflicts of interest to supervisors. The Complaints were investigated by A. Keith Powell, Investigator for the Ethics Commissioner. Following completion of the investigation, that included an interview with Respondent Allen, Mr. Powell prepared a written report which was submitted to the Ethics Commission on or about June 17, 1996. On July 26, 1996, Eric S. Scott, Advocate for the Ethics Commission, filed an Advocate's Recommendation regarding each of the Complaints. In all instances, Mr. Scott found that there was no probable cause to believe that Petitioners violated Section 112.313(6), Florida Statutes. On September 4, 1996, the Ethics Commission entered a Public Report dismissing the Complaints against Petitioners and finding that there was no probable cause to believe that the Petitioners herein violated Section 112.313(6), Florida Statutes. On June 22, 1994, Polk County's Office of Management and Budget completed review of flight operations and recommended that the County's pilot positions be eliminated and that the County instead contract for pilot services. This recommendation was based on a determination by the County's Office of Management and Budget that such plan would be more cost effective. The Complainants were employees of Polk County and worked as pilots until April 11, 1995, when the Polk County Board of County Commissioners voted to eliminate the pilot positions and contract with a private provider for pilot services. Respondent Allen admitted to Keith Powell, Investigator for the Ethics Commission, that Petitioner Saddler did not encourage the false reports as alleged in the Complaint against Petitioner Saddler. In fact, when asked whether Respondent Allen had knowledge of Petitioner Saddler actually encouraging the preparation of the memorandum in question, Respondent Allen responded, "Probably not. I don't think he had knowledge of it." Regarding Petitioner Mahler, the only evidence that Respondent Allen had that Petitioner Mahler encouraged false reports was that Mr. Mahler had asked Iris Sibal to put her concerns in writing when she reported them to him. This is not the same as encouraging false reports. In fact, the Advocate for the Ethics Commission pointed out in his recommendation that under the circumstances which existed, the memorandum written by Iris Sibal was appropriate. Respondent Allen had no basis for the allegations in the Complaints that Petitioners Saddler and Mahler encouraged false reports. Moreover, Respondent Conner was not mentioned in the memorandum, and had no basis whatsoever for this allegation. In their complaint, the Respondents alleged that Petitioners Atterson and Mahler failed to report numerous chemical spills. This allegation was made notwithstanding the fact that it was the Respondents' responsibility to report the spills and then only in instances that resulted in environmental damage. Respondents either knew this to be false or recklessly disregarded whether such allegation was false. Respondents also alleged that the Petitioners knowingly allowed subordinates to engage in outside employment involving conflicts of interest. This allegation was based on Respondent Allen's unfounded assertions that the EVM herbicides belonging to Polk County were being diluted and the subject subordinates were using county herbicides in their outside employment. However, Petitioner Allen acknowledged that he had no evidence to show that there was a theft of EVM herbicides. Furthermore, those employees who engaged in outside employment obtained permission from the County. Again, this allegation was made with a reckless disregard of whether the allegations were false. Respondents further alleged that the Petitioners monetarily rewarded or gave pay raises to employees who assisted them with their "agenda" against Respondents. However, the only salary raises that Respondent Allen could point to were those given to employees who were given additional responsibilities as a result of a reorganization of the division in which they worked. Another allegation made by Respondents was that Petit4oners gathered and presented false evidence to facilitate discrediting and dissolving the flight program. This was found to be completely without basis. As stated in paragraph 6 above, the Polk County's Office of Management and Budgeting considered the total costs to the County in relation to the total amount of time that the pilots were flying. The pilots' flight time had been substantially reduced mainly because the County eliminated its Midge Treatment Program. As a result, the Office of Management and Budget recommended that the County contract for pilot services from an outside source and eliminate the in-house flight program. At the time this matter was being considered, Petition Saddler presented Respondent Conner with an opportunity to respond to the Office of Management and Budget recommendation. Although he was given an opportunity to make comments regarding the report, Respondent Conner responded only by stating that he had no comment. The Respondents alleged that the Petitioners retaliated against them for reporting chemicals spills, conflicts of interest, and safety violations by eliminating their positions as pilots with the County. This allegation is addressed above regarding dissolution of the flight program. Finally, in their Complaints, Respondents alleged that Petitioner Mahler discriminated against other employees on the basis of race, gender, and personal preference. There was no basis for this allegation. All three of the employees Respondent Allen named denied any misconduct by Petitioner Mahler. With regard to the allegations, Respondent Allen either knew this to be false or recklessly disregarded whether such allegations were false. Respondent Allen admitted that he was hostile toward the Petitioners. In the instant case, Respondents not only filed Complaints with the Ethics Commission that contained unfounded allegations, but also directed that letters be sent to Petitioner Saddler's boss and to counties in which Petitioner Saddler had potential job opportunities. In a letter dated April 25, 1995, to Richard Hedrick, Petitioner Saddler's supervisor, Respondents, through their attorney, refer to Petitioner Saddler as the "chief offender" in the pretextural dismissal of Respondents Allen and Conner. Also, the letter stated that Respondents intended to release media disclosures regarding the case. Respondent Allen admitted that following this letter, such media disclosures took place with articles appearing on the front page of the local newspaper, the Lakeland Ledger. In May 1995, at Respondents' direction, two letters were written and sent to counties where Petitioner had applied for jobs. One such letter dated May 18, 1995, was sent to the Chairperson of the Marion County Board of Commissioners. Another letter dated May 9, 1995, was sent to the Chairperson of the Lake County Board of County Commissioners. The contents of both letters were identical. First, the letters stated that "it is my understanding that Mr. Charles Saddler, III, is an applicant for a high post in your county government." Next, the letters stated that Respondents are not disgruntled employees but are men of "high professional and personal ethics who will be under oath, filing formal detailed complaints with the Ethics Commission shortly." Third, the letters referred to an attachment that "generally outlines the nature of the charges" against Petitioner Saddler. Finally, the letter advised that, "Should you wish to interview [him] as to the details, I believe it would be in the public interest to do so." As a result of the aforementioned letters, Respondents injured Petitioner Saddler's ability to compete for the position of County Manager at Lake City. Petitioner Saddler first learned of the existence of the letter when questioned about it during his job interview in Lake County. In sending or directing that this letter be sent to the Lake County Commission, Respondents knew that it could have an adverse impact on Petitioner Saddler's application. Respondent Allen admitted as much at hearing. Petitioner Saddler never interviewed for any position with Marion County. However, the letter sent to the Marion County Board of County Commissioners was sent with the same intent to injure Mr. Saddler's reputation or credibility and thus frustrate his ability to compete for the job. These actions by Respondents reflect that such actions were done maliciously, and were aimed at discrediting Petitioner Saddler. Notifying other counties of their "intention" to file complaints with the Ethics Commission and providing a self- serving list of "charges," and then filing the complaint against Petitioner Saddler evidence Respondents' hostility and malicious intent toward Petitioner Saddler. Based on the foregoing, it is clear that Respondents filed the complaints against Petitioners with a malicious intent to injure the reputations of Petitioners. Furthermore, the Complaints were filed with knowledge that the Complaints contained one or more false allegations, or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. In defending themselves against the allegations in the subject Complaints and in this proceeding, Petitioners have been represented by Mary E. Harlan, Esquire, and Barbara W. Coleman, Esquire. Ms. Harlan rendered legal services to Petitioners during the period between June 3, 1995, and May 20, 1997, while she was employed by the Polk County Board of County Commissioners. Ms. Harlan's hourly rate is $150.00 and she expended 47 hours and 10 minutes in representing Petitioners in this matter. The hourly rate of $150.00 is a reasonable hourly rate. Likewise, the time expended on this matter, 47 hours and 10 minutes, is reasonable. Therefore, the attorney's fee of $7,075.00 incurred is reasonable. Barbara W. Coleman is an Assistant County Attorney for the Polk County Board of County Commissioners. Ms. Coleman's hourly rate is $75.00 and she has expended 25 hours and 50 minutes in representing Petitioners in this matter. The hourly rate of $75.00 is reasonable, as is the time, 25 hours and 50 minutes, expended on this matter. Therefore, the attorney's fees of $1,937.50 incurred as a result of Ms. Coleman's representation is reasonable. Reasonable costs of $604.00 were incurred in connection with defense of the Complaints against Petitioners and in this proceeding. The aforementioned costs and attorney's fees are reasonable and have been stipulated as such by the parties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondents, Carrol G. Allen and Willis D. Conner, liable for attorney's fees of $9,012.50 and for costs of $604.00, and ordering that Respondents pay such fees and costs to the Polk County Board of County Commissioners. DONE AND ENTERED this 12th day of October, 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 12th day of October, 1998. COPIES FURNISHED: Barbara W. Coleman, Esquire Office of Polk County Attorney Post Office Box 9005 Drawer AT01 Bartow, Florida 33831-9005 Joseph N. Baron, Esquire Post Office Box 1088 Lakeland, Florida 33802 Kerrie Stillman, Complaint Coordinator Commission on Ethics 2822 Remington Green Circle, Suite 1 Post Office Box 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue in the case is whether the Respondent is quilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent was certified by the Commission on February 28, 1992, and was issued Law Enforcement certificate number 122723. (Stipulation) The Respondent was employed as a Special Agent for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, from September 13, 1991, to October 18, 1996. (Stipulation) Kenneth Hunter is employed as a deputy sheriff with the Leon County Sheriff's Office, and has been so employed since July 5, 1989. Deputy Hunter has known the Respondent since 1991, when they attended law enforcement academy together. Deputy Hunter and the Respondent kept in touch over that period of time. On June 17, 1995, at approximately 9:00 a.m., the Respondent called Deputy Hunter at his residence. The Respondent told Deputy Hunter that the Respondent's brother, Reverend Gregory James, had been beaten up by Colby Richardson, and that Richardson had stolen some money from his brother, a local minister. The Respondent told Deputy Hunter that the amount stolen was $1,500.00. Some of the money which was taken was money which Reverend James had withdrawn intending to give it to the Respondent. The Respondent stated to Hunter that the prior evening he had spoken to Colby Richardson, and that Mr. Richardson had agreed to return the money taken from Reverend James. The Respondent asked Deputy Hunter to accompany him to Quincy, Florida, to find Richardson. When Respondent called Hunter, the Respondent was on his way to Pensacola, Florida, for a professional course, and was driving his state-issued vehicle which was equipped with a police radio and strobe light. The Respondent picked up Deputy Hunter at Hunter's residence, and introduced Hunter to Reverend James, who was riding in the back seat of the vehicle. Deputy Hunter asked the Respondent why his brother had not reported the robbery, and the Respondent stated that his brother was well known in the community, and did not want to make "a big stink" about it. The Respondent, Deputy Hunter, and Reverend James traveled to Quincy, Florida. While in Quincy, the Respondent spoke to two females who knew Mr. Richardson, and gave the Respondent the telephone number of Mr. Richardson's girlfriend, Rosilyn Copeland. The Respondent telephoned Ms. Copeland and asked for and received directions to her residence. The Respondent, Respondent's brother, and Deputy Hunter traveled to Ms. Copeland's residence in Quincy, Florida. The Respondent knocked on the door, and when Ms. Copeland answered the door, introduced himself as "Agent James," and introduced Deputy Hunter as "Officer Hunter." The Respondent was wearing black pants, a black polo shirt, and a black baseball cap. A conflict in the testimony exists regarding whether the Respondent, who was wearing a badge on a chain around his neck, removed his Special Agent badge from beneath his shirt and showed it to Ms. Copeland. Ms. Copeland later believed that the Respondent was a law enforcement officer who was looking for Mr. Richardson to recover money Mr. Richardson had stolen from Respondent's brother. The Respondent testified at hearing, and stated he was wearing a black shirt on the day in question, and his badge could have been visible. Deputy Hunter gave a statement to the investigator. It is noted that Hunter was also outside his jurisdiction and was the subject or the potential subject of an investigation into his activities in association with the Respondent during this incident. Hunter stated that he never identified himself to anyone they met, and that the Respondent identified himself as “Agent James” and him as “Deputy Hunter.” Hunter stated that he informed the Respondent that it was inappropriate to introduce themselves as officers, and told him not to do that. The Respondent continued to talk with Ms. Copeland about Mr. Richardson's location, and Ms. Copeland told them that she had driven Mr. Richardson to his mother's house. The Respondent asked Ms. Copeland how he could get in touch with Mr. Richardson, and she stated that she would call Mr. Richardson. Ms. Copeland contacted Mr. Richardson on the telephone, and the Respondent, who was standing outside, entered the apartment and took the telephone from Ms. Copeland. The Respondent talked to Mr. Richardson and told him that he had better give back the money. The Respondent told Deputy Hunter to talk to Mr. Richardson. Mr. Richardson stated to Hunter that he wanted to return the money, but was worried about what would happen to him. Deputy Hunter informed Mr. Richardson that nothing would happen to him, and that they only wanted the money back. Mr. Richardson stated that he didn't have all of the money, but would have it by 1:00 p.m. The Respondent gave Mr. Richardson a pager number with which to get in touch with him when Richardson had the money. The Respondent, his brother, and Hunter left Copeland’s, and drove to the residence of Bruce (last name unknown), where the robbery had occurred. Bruce was not there when they arrived, but they met Bruce driving up as they drove away. In the conversation that followed, the Respondent identified himself as Agent James. The Respondent was confrontational with Bruce and accused him of setting his brother up. Bruce denied having been involved, but Hunter was suspicious of Bruce’s version of events. Deputy Hunter told the Respondent that the facts did not sound right, and that they should report the matter to local law enforcement. The Respondent, Deputy Hunter and Reverend James went to the local police department; however, they were advised that the Gadsden County sheriff had jurisdiction. They did not seek assistance from the sheriff's department because of a personal conflict between Respondent's brother and the watch officer at the sheriff's department. Thereafter, the Respondent called Ms. Copeland to find out where Mr. Richardson was living. The Respondent, Reverend James, and Deputy Hunter traveled to the area known as Coon Bottom in the vicinity of State Road 12 in Gadsden County looking for Mr. Richardson. They encountered three boys, and the Respondent identified himself as Agent James. He asked them if they knew where Mrs. Richardson lived, and the boys pointed out her house. The Respondent, Respondent's brother, and Deputy Hunter went to her house and asked her where her son, Colby, was. When she asked why they wanted to know, the Respondent identified himself as "Agent James" and stated that they were looking for Colby. Ms. Richardson stated that she did not know where he was. Deputy Hunter wrote the Respondent's beeper number on the back of his (Hunter's) business cards, gave it to Ms. Richardson, and they left. Later that day, when Colby did not contact them, Deputy Hunter again suggested to the Respondent and Reverend James that they report the offense to the local sheriff. They obtained the mobile number of an investigator with the local Sheriff's Office. Reverend James dialed the number and handed the phone to Deputy Hunter who advised the sheriff investigator of the information as he knew it. On March 18, 1996, eight months after the incident, the Respondent gave a sworn statement to Internal Inspector John W. Harris of the Department of Business and Professional Regulation. Prior to giving his statement, the Respondent was allowed to review the statements previously given by Ms. Copeland and Deputy Hunter. The Respondent was placed under oath and notified that giving a false statement under oath constituted perjury. The Respondent stated to the investigator that he was in Tallahassee on June 17, 1995, on his way to a Narcotics Investigations Identification school in Pensacola. The Respondent stated that he and Deputy Hunter traveled to Quincy in his state vehicle to find the individual identified as Colby Richardson, who had robbed his brother. The Respondent stated that he was driving his police car, carrying his weapon and wearing his badge around his neck. Respondent stated they went to Colby Richardson's girlfriend's house, and that he introduced himself as "James" and that he introduced Deputy Hunter as "Hunter." When the Respondent was asked if he introduced himself as "Agent James" to Ms. Copeland, he stated, "No, I just said James." When asked if he had shown Ms. Copeland a badge, he stated, "No, I can't recall showing her a badge." When he was again asked if he reached inside his shirt and pulled out his badge to show her, he stated, "No, not that I can recall." The Respondent was asked if he showed his badge to anyone while he was near Colby Richardson's mother's house. The Respondent stated that he did not show his badge to the juveniles nor to Ms. Richardson. Respondent admitted that he wore his badge on a chain around his neck, and that he had it on his neck when he was talking to Ms. Copeland. The Respondent believes that Ms. Copeland knew that he was wearing a badge because she could see the outline of the badge under his shirt. There is no evidence and it is not alleged that Respondent knew at the time of the incident that his brother had not been robbed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, (1995), and that Respondent's certifications be suspended for a period of twelve months and until he presents evidence to the commission that he has taken such courses as the commission may direct on professional responsibility. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of December, 1998. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
