The Issue Whether Petitioners committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times relevant to this proceeding, Petitioners Jerry J. Robinson and Charles Osz, were detention deputies employed by the Respondent, Everett S. Rice, Pinellas County Sheriff (Respondent), and assigned to the Pinellas County Jail (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioners were responsible for the care, custody, and control of persons held at the Jail. On January 30, 1998, Officer John Fitzgerald of the Largo Police Department took Duston Llano into custody and transported him to the Jail. Joseph Nichols, an Explorer Scout with the Largo Police Department, accompanied Officer Fitzgerald to the Jail. Mr. Llano was not under arrest since he had committed no crime but was taken into custody pursuant to the Marchman Act based upon his intoxicated condition. When he was taken into custody, Mr. Llano did not resist or threaten physical harm to the officers but did threaten to sue the officers. On January 30, 1998, Petitioners Robinson and Osz were assigned to the booking area of the Jail. Upon Mr. Llano's arriving at the Jail, Petitioners Robinson and Osz took possession of him in the pre-booking area. Shortly thereafter, Petitioners transported Mr. Llano to the post-booking section of the Jail and placed him in Cell 4. Mr. Llano was barely able to walk and was assisted by Petitioners Robinson and Osz to the post-booking area. Once in Cell 4, Petitioners began a pat-down search of Mr. Llano. Petitioner Robinson was to the left of Mr. Llano and Petitioner Osz was to Mr. Llano's right. During the search, a substance Petitioners believed might be crack cocaine was found on the person of Mr. Llano. After the suspicious substance was found on Mr. Llano, Detention Deputy Monte Esry requested that Detention Deputy Larry Potts summon Officer Fitzgerald and Mr. Nichols and ask them to remain at the Jail to possibly process the substance and effect an arrest of Mr. Llano. Detention Deputy Potts complied with Detention Deputy Esry's request and then accompanied Officer Fitzgerald and Mr. Nichols down the hall from the pre-booking area to Cell 4 of the post-booking area where Mr. Llano was being held. The substance found on Mr. Llano's person and believed to be contraband was found by Petitioner Osz who gave the substance to Petitioner Robinson. Petitioner Robinson then handed the substance to Detention Deputy Esry who handed it to Detention Deputy Potts who, then, handed it to Officer Fitzgerald for testing. Having found what they believed to be contraband, Petitioners Osz and Robinson began a strip search of Mr. Llano. When they arrived at Cell 4, Officer Fitzgerald stood near the doorway to the cell and Mr. Nichols remained in the hallway outside the cell. From Officer Fitzgerald's and Mr. Nichols' vantage point, it was possible for them to see into Cell 4. Both Officer Fitzgerald and Mr. Nichols observed Mr. Llano sitting on the bunk in the cell with Petitioner Robinson on his left and Petitioner Osz on his right. Mr. Llano was slumped over and again made reference to suing everyone. However, Mr. Llano took no action to resist or otherwise justify the use of force. In an apparent response to Mr. Llano's threat to sue, Petitioner Osz grabbed Mr. Llano by his hair, straightened him up and slapped him on the face or head at least twice. While Petitioner Osz was slapping Mr. Llano, he said something to the effect of "how about another thousand" or "there is another thousand." From his vantage point in the hall, not more than 15 feet away, Mr. Nichols saw Petitioner Osz slap Mr. Llano and heard the comments by Petitioner Osz. Officer Fitzgerald, who was at the doorway of Cell 4, approximately nine feet, also saw the slapping incident and heard the comments made by Petitioner Osz. During the course of the slapping incident, Detention Deputy Potts was also in Cell 4. Nonetheless, he testified that he did not see Petitioner Osz slap Mr. Llano. When Petitioner Osz slapped Mr. Llano, Petitioner Robinson was in Cell 4 and within five or six feet of Petitioner Osz and Mr. Llano. However, at the time of the incident, Petitioner Robinson was preoccupied with depositing items obtained from Mr. Llano's person into a property bag that was on a steel table in the cell and did not see Petitioner Osz slap Mr. Llano. Also, because the Jail was very busy and loud on this evening, Petitioner Robinson did not hear Petitioner Osz slap Mr. Llano. Because Petitioner Robinson did not observe the incident, he did not respond to or report Petitioner Osz' actions toward Mr. Llano. Neither Officer Fitzgerald nor Mr. Nichols observed Petitioner Robinson during the slapping incident and could not testify as to where he was looking when the incident occurred. After the slapping incident, Officer Fitzgerald and Mr. Nichols then left the area of Cell 4 in order to conduct a test of the substance found in Mr. Llano's pants pocket. As a result of the test performed by Officer Fitzgerald, it was determined that the substance was not illegal. After conducting the presumptive test, Officer Fitzgerald and Mr. Nichols left the Jail. Officer Fitzgerald and Mr. Nichols subsequently reported the slapping incident to their supervisors and prepared reports memorializing the events they observed. A representative of the City of Largo Police Department then reported the incident to the Respondent, who initiated an investigation by the Pinellas County Sheriff's Office, Inspections Bureau, Administrative Inquiry Division. As a part of the investigation regarding the conduct in question, sworn statements were taken from Officer Fitzgerald, Mr. Nichols, Detention Deputy Potts, Detention Deputy Esry and Petitioners Osz and Robinson. Attempts to speak with Mr. Llano were fruitless based upon his lack of recollection of the incident. During the course of his sworn statement, Petitioner Robinson stated that he did not see Petitioner Osz slap Mr. Llano. Detention Deputy Potts, who was also in Cell 4 during the incident, also stated in his sworn statement that he did not observe Petitioner Osz slap Mr. Llano. During his sworn statement, Petitioner Osz denied that he ever struck Mr. Llano. After completing its investigation, the Administrative Inquiry Division presented its entire investigative file to the Chain of Command Board without conclusion or recommendation. The Chain of Command Board met and after reviewing the materials provided by the Administrative Inquiry Division and giving Petitioners the opportunity to respond further, the complaints against Petitioners were sustained. Specifically, the violations determined to have occurred as to Petitioner Osz were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, A (Level Five Violation), 021, relating to custody of arrestees/prisoners; Violation of PCSO Rule C1, V, C (Level Three Violation), 060, relating to standard of conduct. Under the PCSO Guidelines, a sustained finding of two Level Five violations and one Level Three violation is the basis for assigning 115 disciplinary points. As a result, Petitioner Osz was assessed 115 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 115 points to be a minimum discipline of a 15-day suspension and a maximum discipline termination. In the instant case, the discipline imposed against Petitioner Osz was termination. Specifically, the violations determined to have occurred as to Petitioner Robinson were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, B (Level Four violation), 037, relating to reporting violations of laws, ordinances, rules or orders. Under the PCSO Guidelines, a sustained finding of one Level Five violation and one Level Four violation is the basis for assigning 80 disciplinary points. As a result, in the instant case, Petitioner Robinson was assessed 80 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 80 points to be a minimum discipline of a 10-day suspension and a maximum discipline of termination. In the instant case, the discipline imposed against Petitioner Robinson was termination. The conduct engaged in by Petitioner Osz in slapping Mr. Llano was unnecessary, excessive, did not constitute a good correction practice and is not consistent with the training or conduct expected of correctional officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the PCSO enter a Final Order: 1) finding Petitioner Osz guilty of the conduct alleged in the charging document; (2) upholding the termination of Petitioner Osz' employment as a detention deputy with the PCSO; (3) dismissing the charges against Petitioner Robinson; and, (4) reinstating Petitioner Robinson as a detention deputy with the PCSO. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1999. COPIES FURNISHED: William M. LauBach, Esquire Executive Director Pinellas County Police Benevolent Association 3737 16th Street, North St. Petersburg, Florida 33704 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Charles Osz, pro se 2545 Coachman Road Northeast Number 127 Clearwater, Florida 33765 Keith Tischler, Esquire Power, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue Whether Petitioner's application for licensure as a real estate sales associate should be denied based on his criminal history.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On July 6, 2000, in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001, Petitioner was convicted of one count of "conspiracy to possess with intent to distribute cocaine" in violation of 21 U.S.C. § 846 (which crime had been committed over a period ending October 27, 1999) and sentenced to 87 months in federal prison. He was subsequently ordered to "self surrender at the facility designated by the Bureau of Prisons on August 21, 2000." On September 6, 2005, Petitioner filed with the Commission an application for licensure as a real estate sales associate. At the time he filled out his application he had not completed his federal prison sentence. The application materials he submitted revealed his conviction and sentence in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001. Having determined that Petitioner's "criminal history" constituted "grounds for denial of [Petitioner's] license application, the Commission, on February 13, 2006, issued its Notice of Intent to Deny the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 19th day of June, 2006, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2006. COPIES FURNISHED: Rolando J. Sanabria 200 East 65th Street Hialeah, Florida 33013 Thomas Barnhardt, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Nancy B. Hogan, Chairman Division of Real Estate 400 West Robinson Street, Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues are whether Petitioner has shown, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense, and if so, whether Respondent's intended action to deny Petitioner's request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a 32-year-old male who seeks to qualify for employment in a position of trust having direct contact with children or developmentally disabled persons served in programs regulated by the Agency. The Agency is the state agency responsible for regulating the employment of persons in positions of trust for which Petitioner seeks to qualify. In a letter dated February 20, 2015, the Agency's Director, Barbara Palmer, notified Petitioner that his request for exemption from disqualification from employment in a position of special trust was denied. The letter advised Petitioner that this decision was based upon "the serious nature of the offense(s), the lack of sufficient evidence of rehabilitation, and [his] failure to sustain [his] burden of demonstrating by clear and convincing evidence that [he] should not be disqualified." Resp. Ex. C. Before Director Palmer made her decision, Petitioner's request for an exemption was reviewed by a Department of Children and Families (DCF) screener who compiled a 120-page report entitled "Exemption Review" dated November 17, 2014. See Resp. Ex. B. The Exemption Review did not make a recommendation one way or the other, but simply compiled all relevant information that would assist the Director in making her decision. The report was first given to the Agency Regional Operations Manager in Orlando, who reviewed it and then made a preliminary recommendation to the Director. The Agency decision was triggered after Petitioner applied for a position of special trust on October 24, 2014. To qualify for the position, Petitioner was required to undergo a level 2 background screening performed by the DCF. The screening revealed that Petitioner had six disqualifying offenses between 1995 and 2005. Those offenses are listed below: May 17, 1995 -- burglary of a dwelling; Petitioner pled guilty and adjudication was withheld; April 10, 1997 -- robbery; Petitioner pled guilty and adjudication was withheld; May 9, 1997 -- robbery; Petitioner pled guilty, adjudication was withheld, and he was placed on probation; June 17, 1997 -- battery by detainee in a detention facility; Petitioner pled nolo contendere, was adjudicated delinquent, and placed on probation; January 18, 2001 -- possession of cocaine with intent to sell; Petitioner pled nolo contendere, was adjudicated guilty, placed on probation, and ordered to serve 86 days in the County Jail; and February 1, 2005 -- possession of cocaine; Petitioner pled guilty, was adjudicated guilty, placed on probation, and ordered to serve six months in the County Jail. Besides the disqualifying offenses, Petitioner has a number of arrests and/or convictions for non-disqualifying offenses beginning in 1995. Two offenses, disorderly conduct and trespass on a property or conveyance, occurred in July 2012, or seven years after his last disqualifying offense. For that offense, he pled nolo contendere and was adjudicated guilty. He was also ordered to serve one day in the County Jail and required to complete a four-hour anger management class. The Exemption Review shows that in May 2000, Petitioner earned his high school diploma. In June 2009, he earned an associate's degree in Network Administration from the TESST College of Technology in Baltimore, Maryland. In May 2014, he earned a bachelor's degree in psychology from Morgan State University located in the same city. The Exemption Review also shows: from January 2008 through September 2008, Petitioner worked as a cashier and sales consultant at a retail store; from May 2009 through January 2010, he worked as an activities coordinator; from June 2011 through August 2013, he worked as a youth counselor; from February 2014 through May 2014, he worked as a records and registration clerk at the university from which he received his degree; and from June 2014 through August 2014 he worked as a behavior technician. At hearing, he testified that he is currently employed by Quest Diagnostics in the Orlando area. Most of Petitioner's disqualifying offenses occurred at a very early age. For example, in May 1995, while in middle school and just before he turned 12 years of age, he committed his first disqualifying offense, burglary of a dwelling. When he was arrested for his last disqualifying offense in February 2005, possession of cocaine, he was 21 years old. Petitioner attributes his criminal conduct to immaturity, peer pressure, and what he characterized as "environmental exposure." He expressed remorse, he takes full responsibility for his actions, and he acknowledges he could have handled his life better. He is currently in a committed relationship, has a new-born child, and serves as a mentor in the community. In short, Petitioner says he has changed his life for the better. Besides two witnesses who spoke highly of his recent volunteer work with children, an Orlando City Commissioner submitted a letter of recommendation. If his application is approved, Petitioner has a pending job offer with Lodestone Academy in Orlando, which works with Agency clients. An Agency representative testified that the Agency's clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. They often have severe deficits in their abilities to complete self-tasks and communicate their wants and needs. For this reason, the Agency undertakes a heightened scrutiny of individuals seeking an exemption. In explaining the Agency's rationale for denying the application, the Regional Operations Manager listed the following factors that weighed against a favorable disposition of Petitioner's request: the frequency of the criminal offenses; criminal behavior that has consumed one-half of his life; the limited time (three years) since his last arrest, albeit for a non-disqualifying offense; and Petitioner's lack of specificity and accountability in his Exemption Questionnaire and testimony regarding the disqualifying offenses. As to the last factor, Petitioner could recall very few facts regarding his early arrests, saying they occurred at a very young age. He also denied that there were any injuries to his victims. However, one offense involved battery on a detainee in a juvenile facility, and in another, he ripped two gold chains from a victim's neck.
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 application for an exemption from disqualification. DONE AND ENTERED this 17th day of June, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 June, 2015.
The Issue The issue in this matter is whether the Pinellas County Sheriff’s Office properly dismissed Respondent from her employment as a deputy sheriff.
Findings Of Fact At all times pertinent to this matter, Respondent was employed by the Sheriff’s Office as a deputy sheriff. In 2015, Respondent was assigned to the Pinellas County Department of Detention and Corrections. She worked at the Pinellas County Jail (the “Jail”). At the time of her dismissal, Respondent had worked for the Sheriff’s Office for approximately 16 years. Bob Gualtieri is the duly-appointed Sheriff of Pinellas County, Florida, and is in command of Sheriff’s Office operations. As part of his responsibilities, Sheriff Gualtieri is authorized to impose discipline upon Sheriff’s Office employees and members who are found to have violated Sheriff’s Office rules and regulations. Sheriff Gualtieri’s authority is set forth in chapter 89-404, as amended by chapter 90-395, Laws of Florida, entitled the Pinellas County Sheriff’s Civil Service System (the “Civil Service Act”). As a deputy sheriff, Respondent was charged with the responsibility of complying with all Sheriff’s Office rules, regulations, general orders, and standard operating procedures. Respondent’s termination is based on her alleged misconduct during and after an incident on April 10, 2015, when Deputy Daunika Burge mistakenly carried her service revolver into the Jail in violation of Sheriff’s Office policies. The Sheriff’s Office determined that Respondent was aware of the presence of Deputy Burge’s sidearm in the Jail, but did not take prompt and effective action to remove or report it. Thereafter, the Sheriff’s Office believes that Respondent lied to Sheriff’s Office investigators by denying any knowledge of the pistol’s presence in the Jail. Sheriff Gualtieri terminated Respondent on August 14, 2015. On April 10, 2015, Deputy Burge was assigned to the Judicial Operations Bureau, also known as the “court squad.” Around 6:00 that morning, she was escorting several inmates through the Jail. As she was standing on F-wing, one of the inmates pointed to Deputy Burge’s side and remarked that she was still wearing her sidearm. The Jail is a maximum security facility. As such, all firearms, even for sheriff deputies, are prohibited from the premises. As Sheriff Gualtieri expressed, “the Jail is a completely sterile environment. It’s probably one of the few sacrosanct things. Because nobody has got weapons . . . no one is armed in that facility.” Sheriff Gualtieri further described, “I can’t think of anything that is more serious, that has the potential to wreak havoc and to get people killed, than to introduce a firearm into a jail setting, especially a maximum security jail setting . . . people’s lives, literally, are at risk by having that gun in there.” Lockers placed just outside the Jail entrance are designated as the storage location for all firearms. Sheriff officers are instructed to store all weapons in the lockers prior to entering the Jail. Unfortunately, Deputy Burge forgot to secure her sidearm before she entered the Jail. After realizing her mistake, Deputy Burge decided to store her weapon inside the Jail in the 1F control room, which was the closest secure location nearby. The 1F control room is the security post located inside the Jail between the “Hotel” (the inmate living area) and the exterior hallways that lead to courtrooms and other public areas. The control room is approximately twelve feet long and eight feet wide. Large glass windows line the upper half of the control room walls from approximately four feet high up to the ceiling. The 1F control room is staffed by at least one deputy at all times. To access the control room from the exterior hallways, the deputy inside the control room must remotely unlock (then relock) two control gates. Like the rest of the Jail, the 1F control room is a secure area in which weapons and ammunition are prohibited. Deputy Burge entered the 1F control room with her firearm at approximately 6:22 a.m. Two deputies, Corporal Gilberto Perez and Deputy Michelle Gammon, were present in the control room. After she entered, Deputy Burge testified that she announced to Corporal Perez and Deputy Gammon that, “I have something I shouldn’t have.” Deputy Burge then quickly removed her gun belt and pistol and moved to a small cabinet or cupboard that is located under a counter in the corner of the room. There, she placed her firearm and two magazines of ammunition into the cabinet. Deputy Burge stated that she laid her pistol and ammunition on the bottom of the cabinet and covered them with clothing that she found inside the cabinet. The cabinet was not secured and could not be locked. Thereafter, she quickly exited the control room. On that same morning, Respondent was assigned to work the day shift in the 1F control room. Her shift began at 7:00 a.m. Respondent reported to the control room just before 6:50 a.m. (approximately 30 minutes after Deputy Burge placed her pistol in the cabinet). In the control room, Respondent relieved Corporal Perez who was her night shift counterpart. The Sheriff’s Office alleges that, just before he departed from his shift, Corporal Perez informed Respondent that another deputy left a weapon in the control room cabinet. Respondent disputes this allegation. Corporal Perez was the night-shift commander of the 1F control room. Corporal Perez testified that near the end of his shift, a deputy (later identified as Deputy Burge) enter the control room. She walked passed him, and he heard her say that she had forgotten to remove her sidearm prior to entering the Jail. He then saw her kneel down in front of the cabinet in the corner of the room. He observed her place a pistol in the cabinet. Corporal Perez relayed that he heard the deputy express that she was going to leave her weapon in the control room, and she would be back to pick it up later. After the deputy left the control room, Corporal Perez opened the cabinet door and looked inside. He saw a pistol and two clips of ammunition lying on the bottom of the cabinet. Corporal Perez stated that he directly told Respondent about Deputy Burge’s weapon in the cabinet. When Respondent reported for her shift at 6:50 a.m., Corporal Perez attested that before he left the control room, he advised Respondent that a court squad deputy left her firearm in the cabinet. Corporal Perez then motioned for Respondent to walk with him to the cabinet. He opened the cabinet door in front of Respondent, and pointed to the pistol laying inside. Corporal Perez relayed that Respondent, who was standing right next to him, nodded her head. Respondent then bent down and saw the object to which he was pointing. He also showed her the ammunition. Corporal Perez had no doubt that Respondent saw the pistol. Corporal Perez then told Respondent that the deputy was returning to pick up the weapon at the end of her shift. Corporal Perez did not know who the deputy was. Therefore, he described her to Respondent. According to Corporal Perez, Respondent correctly guessed that the officer was Deputy Burge. Corporal Perez left the 1F control room approximately six minutes after Respondent entered. At the final hearing, the Sheriff’s Office introduced a security video from a fixed position surveillance camera mounted outside the 1F control room. The video camera was located in a long corridor that connected the different wings of the Jail. The camera looked across the corridor into the interior of the control room. Because the control room walls were lined with windows, most of the activity and persons moving about inside were reasonably visible and identifiable. (The video recording did not capture audio sounds or conversations.) The cabinet in which Deputy Burge stored her firearm, however, was located under a counter in one of the corners of the control room. The cabinet was not visible by the camera. Furthermore, the corner post of the control room wall blocked from view any person opening the cabinet door or looking inside. At approximately 6:50 a.m., the video recording of the 1F control room shows Corporal Perez acknowledging Respondent’s arrival. Shortly thereafter, Corporal Perez and Respondent move together to the corner of the room where the cabinet is located. Both individuals disappear from the video, effectively obscured by the corner post. Corporal Perez testified that during this brief period, he opened the cabinet door, pointed to the weapon, and Respondent bent over and looked at the pistol. The video recording corroborates Corporal Perez’s testimony that he and Respondent communicated after she entered the control room. The video also establishes that Corporal Perez and Respondent walked together to the corner of the room where the cabinet is located. However, the video does not show, outside a brief quiver of someone’s clothing, Corporal Perez opening the cabinet door or directing Respondent’s attention to Deputy Burge’s sidearm. Neither does the video confirm that Respondent peered inside the cabinet. Deputy Gammon was also present in the 1F control room when Deputy Burge entered on the morning of April 10, 2015. Deputy Gammon denied having any knowledge at the time that Deputy Burge was carrying a weapon. Neither did she observe Deputy Burge place her sidearm in the cabinet. However, Deputy Gammon did hear Deputy Burge utter something to the effect of “I have something I shouldn’t have.” Deputy Gammon was also present in the 1F control room when Respondent arrived to begin her work shift. Shortly after Respondent entered the control room, Deputy Gammon saw Respondent and Corporal Perez move together to the corner of the room where the cabinet was located. Deputy Gammon, however, did not hear Respondent’s conversation with Corporal Perez. Neither did she speak with Respondent about Deputy Burge’s weapon. According to the video recording, Deputy Burge returned to the 1F control room to retrieve her pistol and ammunition at 7:52 a.m. Respondent was not present when she entered the room. In fact, the video showed that three minutes earlier (at 7:49 a.m.), Respondent walked out of and away from the control room. (Respondent explained that she left the control room to get some coffee.) In the control room, Deputy Burge pulled her pistol out of the cabinet and placed it, along with the ammunition clips, in a black bag. She then exited the control room intending to leave the Jail. As she left the 1F control room, Deputy Burge testified that she bumped into Respondent and a deputy recruit standing just outside the control room door. Deputy Burge relayed that Respondent said to her, “I hope you’re here to get what you left earlier.” Deputy Burge replied to Respondent that she was and stated, “That’s why I have my black bag.” Respondent then inquired, “Did you get everything?” Deputy Burge conveyed that neither she nor Respondent used the word “firearm,” “gun,” or “weapon.” However, she interpreted Respondent’s statements as questions specifically concerning her pistol. Deputy Burge testified that, based on this exchange, she had no doubt that Respondent knew that her gun was in the 1F control room. As with the cabinet, the control room doorway is obscured from the video camera’s vantage point. Any persons standing outside the control room are hidden from view. Deputy Burge testified that, despite the fact that the video does not show her meeting Respondent, she did, in fact, speak with her outside the control room door. However, the video recording completely discredits and subverts Deputy Burge’s story. True to her testimony, at 7:52 a.m., the video shows Deputy Burge walking with a black bag down a corridor and into the control room. Once there, she moves across the room to the corner where the cabinet is located (disappearing from view). Soon thereafter, she walks back across the control room, through the doorway (again disappearing from view), and reemerges back in the corridor walking away from the control room. However, moments later, just after Deputy Burge disappears from view up the corridor, the video recording shows Respondent appear in the corridor, walking toward the 1F control room from the opposite direction. Respondent turns a corner, disappears from view, then walks through the control room door carrying a cup of coffee. The video provides compelling evidence that Deputy Burge did not encounter Respondent outside the control room door (much less carry on a conversation about the weapon). The video establishes that Deputy Burge did not see Respondent at any time while she was retrieving her pistol. When Deputy Burge was asked at the final hearing whether, based on the video record, she did, in fact, confront Respondent outside the control room doorway and discuss her sidearm, Deputy Burge testified that “the video shows that we didn’t . . . I did not have a conversation with [Respondent].” Deputy Burge’s mistake of carrying her sidearm into the Jail led to an internal administrative investigation, which commenced on May 1, 2015. Deputy Burge, Corporal Perez, and Deputy Gammon were all charged with violating Sheriff’s Office General Order 3-1.1, Rule 5.4, pertaining to duties and responsibilities. The investigation was conducted by the Sheriff’s Office’s Administrative Investigations Division, Professional Standards Bureau (“AID”). Sergeant Amy White was assigned to lead the investigation. One of Sergeant White’s goals was to determine who knew about the presence of Deputy Burge’s sidearm in the control room. As Sheriff Gualtieri described, anybody who had knowledge that “a loaded firearm is within that environment, should immediately — must immediately take action to determine if it has occurred. And if it has, to take swift remedial action.” Therefore, Sergeant White initiated her investigation to determine whether Corporal Perez and Deputy Gammon failed to take action or notify anyone of the situation. On May 22, 2015, AID questioned Respondent as a witness to the incident. Three AID sergeants met with Respondent to determine what, if anything, she knew about the presence of Deputy Burge’s weapon in the 1F control room on April 10, 2015. As the questioning began, Respondent remarked, “Are you talking about the gun, or do you mean the gun[?]” Prior to Respondent’s statement, Sergeant White had not made any comments to Respondent about a gun, firearm, or weapon being the subject of the investigation. Consequently, Sergeant White interpreted Respondent’s unsolicited comment to mean that Respondent had learned that Deputy Burge had left her pistol in the control room at the time it happened (April 10, 2015) and from no other source after April 10, 2015. One of the AID investigators then directly asked Respondent if she knew that a gun had been brought into the 1F control room. At the final hearing, Sergeant White described Respondent’s response as, “she, you know, then kind of tilted her head, and got this kind of, for lack of a better term, smile or smirk on her face. And said may — stated maybe. . . .” This reaction confirmed in Sergeant White's mind that Respondent knew about the presence of Deputy Burge’s sidearm in the control room on April 10, 2015. That same day (May 22, 2015), the Sheriff’s Office changed Respondent’s status to a subject of the investigation. The complaint of misconduct filed against Respondent alleged that on April 10, 2015, she violated General Order 3-1.1, Rule 5.4, pertaining to duties and responsibilities. (The same charge the Sheriff’s Office filed against Deputy Burge, Corporal Perez, and Deputy Gammon.) On June 16, 2015, Respondent made a sworn statement to AID. In her statement, Respondent denied any knowledge of the presence of Deputy Burge’s sidearm in the 1F control room on April 10, 2015. Respondent specifically expressed that Corporal Perez did not tell her that Deputy Burge brought her gun into the control room. Respondent explicitly stated that “Nobody specifically told me that there was a weapon in that control room,” and that she was “totally unaware of a weapon.” The Sheriff’s Office believed that Respondent’s sworn statement directly contradicted the statement she made during her initial interview on May 22, 2015, in which she said the word “gun” and then tilted her head and kind of smirked. Therefore, the Sheriff’s Office concluded that Respondent’s sworn statement on June 16, 2015, was a lie. Consequently, on June 24, 2015, the Sheriff’s Office supplemented Respondent’s initial complaint of misconduct with another complaint. This second complaint added the allegation that on, but not limited to, June 16, 2015, Respondent violated General Order 3-1.1, Rule 5.6, pertaining to truthfulness. In the course of its investigation, AID compiled an investigation record. This record was provided to the Sheriff’s Office’s Administrative Review Board (the “ARB”) which considered the complaints of misconduct against Respondent. The ARB was a five-person panel composed of members of Respondent's chain-of- command. The ARB was charged with reviewing the evidence and resolving issues of disputed fact. Thereafter, the ARB would make a recommendation to Sheriff Gualtieri regarding the disposition of the matter, as well as any discipline that should be imposed. Sheriff Gualtieri would then decide whether to follow the ARB's recommendation, and what discipline, if any, the member was to receive. The ARB reviewed AID’s investigation record including statements made by the witnesses. The ARB also heard live testimony from Respondent, as well as the other deputies charged with misconduct. Thereafter, the ARB substantiated both complaints of misconduct against Respondent. On August 14, 2015, Sheriff Gualtieri issued an Inter- office Memorandum to Respondent. Sheriff Gualtieri relayed that the ARB determined that Respondent committed the following violations of General Order 3-1.1: You violated Pinellas County Sheriff’s Office General Order 3-1.1, Rule and Regulation 5.4, Duties and Responsibilities: Synopsis: You relieved the night shift 1F Control Room post and were advised that a firearm had been left in a lockless cabinet, in that control room, by another deputy. The loaded and charged gun, accompanied by two full magazines, was displayed to you and you acknowledged its presence in the unsecured cabinet. You took no action to rectify this acute situation. To compound this integrity compromise of the maximum security facility of the Pinellas County jail, you were also acting in the capacity of Field Training Officer. You and your recruit were notified of the presence of the gun and discussed it in the control room. You misled your recruit with flippant and impotent remarks. You had an obligation, not only to restore security, but to teach your trainee proper and effective security measures. You failed to fulfill these responsibilities. You violated Pinellas County Sheriff’s Office General Order 3-1.1, Rule and Regulation 5.6, Truthfulness: Synopsis: You affirmed, to three Administrative Investigation Division (AID) Sergeants, that you were aware of the presence of a gun in the 1F Control Room while you were assigned to and accountable for the security of that control room. Consequently, you were identified as a subject in this case. During your subject interview, you provided testimony which contradicted the statements you originally made to the AID investigators. When presented with this conflict, you denied making the statements to the three investigators. Four (4) additional staff members, two of whom were equally culpable for this incident, consistently attested to your awareness that a firearm was carelessly stored in the control room. In the same interview, you, again, denied being notified of the presence of the weapon and made counter accusations against some of the members. In a second subject interview, this being your third meeting with AID investigators, you maintained your denial and repeatedly swore that witness testimony was false and made “no sense.” To the contrary, however, witness’ testimonies were logical and independent yet consistent and they were supported by recorded video of this incident. At your Administrative Review Board, you were, again, presented with witness testimony and video evidence which bore stark contrast to your sworn statements. Your replies to direct questions from the Board were evasive, and insufficient to prove your candor in this case. In essence, Respondent was alleged to have been aware that a weapon was brought into the 1F control room against regulations, and she took no action to rectify the situation and restore security. Thereafter, Respondent was not truthful in that she lied to Sheriff’s Office investigators by denying that she knew about the presence of the firearm in the control room. Sheriff Gualtieri “substantiated” the ARB’s findings. Sheriff Gualtieri explained at the final hearing that he reached his conclusion based on the “abundance of evidence that was presented to me that indicated that she knew the gun was there, and denied it.” Sheriff Gualtieri did not conduct an independent investigation into the incident, or Respondent’s involvement in the same. Sheriff Gualtieri did not read the investigation documents themselves or witness statements. (He never takes that step.) Sheriff Gualtieri did not speak to Respondent about what happened on April 10, 2015. Instead, Sheriff Gualtieri met with the members of the ARB and was briefed on the evidence and the ARB’s recommendation.6/ Sheriff Gualtieri based his decision on “the volume of the evidence” against Respondent, specifically: During her May 22, 2015, interview with AID, Sheriff Gualtieri found it significant that Respondent “initiated the inquiry about the gun. [The AID investigators] didn't say gun to her. She said gun to them.” Sheriff Gualtieri concluded that Respondent knew about Deputy Burge’s mishandling of her pistol and “once it became evident to Respondent that she might have some culpability for knowing about the firearm, she changed her story and began denying any knowledge of it.” Sheriff Gualtieri found it significant that “all these people . . . said that they knew that [Respondent] knew about the gun . . . you have all of the totality of several people saying that.” Sheriff Gualtieri did not personally speak with any witnesses involved in AID’s investigation. Instead, he relied on what he was told the witnesses admitted to the investigators. In reaching his conclusion to terminate Respondent, Sheriff Gualtieri specifically referenced statements given by Deputy Burge and Corporal Perez who asserted that they expressly told Respondent that Deputy Burge had left her sidearm in the cabinet.7/ Sheriff Gualtieri also referenced the video recording which he believed corroborated Corporal Perez’s testimony. He commented that “there’s a video of Perez with her at the cabinet where the gun is stored.” Sheriff Gualtieri did not view the video. However, he described that he understood it showed Respondent “bending over and looking to a storage area where the gun is stored.” Thereafter, Sheriff Gualtieri took all of the evidence gathered to that point including “the numerous statements by numerous deputies that they personally told her; they either heard somebody tell her, et cetera. And, then the video, with her looking in the cabinet where the gun was, that I concluded that she did have knowledge.” Sheriff Gualtieri also commented that Respondent had ample opportunity to reconsider her denial of knowledge of the weapon’s presence and tell the truth. Instead, Respondent continued to refuse “to do the right thing.” Consequently, on August 14, 2015, Sheriff Gualtieri sustained the complaint against Respondent. Sheriff’s Office General Order 10-2, Disciplinary Procedures, establishes disciplinary guidelines for the Sheriff’s Office. Violations of Sheriff’s Office standards of conduct are categorized into five distinct levels which range from Level 1 to Level 5. Level 5 violations result in the most serious discipline. Pursuant to General Order 3-1, violations of Rule 5.4, Duties and Responsibilities, and Rule 5.6, Truthfulness, are Level 5 violations. According to the General Order 10-2 point scale, 60 points were assigned for Respondent’s two Level 5 violations. On the disciplinary scale, the discipline that the Sheriff may impose for 60 points ranges from a minimum suspension of seven days up to termination from the Sheriff’s Office. Sheriff Gualtieri determined that the appropriate discipline for Respondent’s two rule violations was to terminate her employment. On her progressive discipline worksheet, Sheriff Gualtieri wrote that Respondent was terminated “because of lying.” Sheriff Gualtieri explained at the final hearing: [T]he most serious part of the allegation, which was the most concerning part of the facts to me, was the lying . . . . I will not tolerate, and have never tolerated a deputy sheriff lying and not telling the truth. There’s nothing that is more important than our veracity and our credibility, individually. And, everybody in the agency knows, or should know . . . that if a determination is made, based upon the facts, that you lied, you’re not going to work at the Pinellas County Sheriff’s Office. Sheriff Gualtieri further explained: There’s nothing more important than your candor — than your character. And, it really brings discredit on an individual [and] the agency. . . . It really prevents you from being an effective deputy sheriff. Because you’re going to get called in — everything you do, is going to get called into question. . . . So, very simply . . . the underlying conduct is in one bucket, and would have been dealt with separately. Then, you add the lying onto it. And, the lying is what resulted in the termination. Sheriff Gualtieri testified that he has terminated every Sheriff’s Office deputy who has been found to violate the policy requiring truthfulness. As he succinctly stated at the final hearing, “Everybody that I have determined that has lied, I fired them.” Sheriff Gualtieri also substantiated the ARB’s findings that Deputy Burge, Corporal Perez, and Deputy Gammon violated General Order 3-1.1, Rule 5.4, Duties and Responsibilities. Sheriff Gualtieri explained that he would have expected these deputies to take immediate, swift action to remove the gun from the Jail. Based on their violations, Sheriff Gualtieri suspended Deputy Burge for 120 hours and reassigned her from the court squad to the Jail. Corporal Perez was suspended for 40 hours and demoted from corporal to deputy (which is the loss of a supervisory rank). Deputy Gammon was suspended for 40 hours. None were terminated. Sheriff Gualtieri expressed that while these deputies made a mistake, none of them lied about the situation. None were charged with violating General Order 3-1.1, Rule 5.6, Truthfulness. Respondent asserts that she was wrongfully terminated. At the final hearing, Respondent staunchly denied that she knew of the presence of Deputy Burge’s firearm in the 1F control room on the day in question. Respondent also disputed that she lied in her sworn statement on June 16, 2015, when she denied any knowledge that Deputy Burge brought her pistol into the control room. Respondent further refuted having any conversation with Deputy Burge outside the control room door on the morning of April 10, 2015. (The surveillance video supports Respondent’s testimony.) Respondent admitted that she had a brief conversation with Corporal Perez when she reported to the 1F control room to start her shift. However, she denied that Corporal Perez notified her that a weapon was in the cabinet. She further denied that he pointed out the pistol to her, or that she bent down to look into the cabinet to see the weapon. At the final hearing, Respondent commented about her statement during the May 22, 2015, interview during which she uttered the word “gun.” Respondent explained that her remark was based on the “gossip” and “rumor and innuendo” that she had heard about the incident. Respondent also challenges the fairness of Sheriff Gualtieri’s decision to terminate her while the other three deputies remain with the Sheriff’s Office. Deputy Burge actually caused the trouble by wrongfully bringing her sidearm into the Jail. Yet, Sheriff Gualtieri allowed her to keep her job. Respondent also pointed out that, because Corporal Perez was aware of the weapon’s presence in the control room (prior to her arrival), he should have assumed primary responsibility for reporting and removing it. Therefore, even if Respondent did err in not timely communicating the pistol’s existence in the Jail, Corporal Perez was more negligent by not immediately securing the weapon. Sheriff Gualtieri, however, also allowed him to keep his job. Finally, Respondent testified regarding two other deputies who she believed the Sheriff’s Office punished inconsistently. Respondent represented that both Detention Deputy Alexandra Zuloaga and Deputy Jeanette Pettiford violated the Sheriff’s Office rules for truthfulness, but were not terminated.8/ However, the Sheriff’s Office presented evidence that neither of these “comparators” were punished for the same rule violation as Respondent. Deputy Zuloaga was disciplined for loyalty, not “truthfulness.” Similarly, a charge of untruthfulness was not substantiated against Deputy Pettiford. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Sheriff’s Office sufficient factual and legal “cause” to dismiss Respondent. Consequently, the Sheriff’s Office met its burden of establishing sufficient grounds to terminate Respondent from her position as a deputy sheriff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Pinellas County Sheriff’s Office, enter a final order finding that Respondent, Cynthia Graham, violated General Order 3-1.1, Rule 5.4, Duties and Responsibilities, and Rule 5.6, Truthfulness. It is further RECOMMENDED that Sheriff Gualtieri’s decision to terminate Respondent from her employment with the Pinellas County Sheriff’s Office be sustained. DONE AND ENTERED this 19th day of July, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 July, 2017.
The Issue The issue in this case is whether Petitioner has, pursuant to section 435.07, Florida Statutes, demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with children or developmentally disabled persons and, thus, whether the intended action to deny an exemption from disqualification from employment is an abuse of the agency’s discretion.
Findings Of Fact The Agency Action Petitioner seeks an exemption from disqualification to allow her to serve as a direct care service provider for One Mainstream, a direct services provider for developmentally disabled clients. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and charged with serving and protecting children or adults with developmental disabilities. Vulnerable populations served by APD include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down’s syndrome. Some of APD’s clients are incapable of expressing their needs, or unable to express whether something is wrong. As part of the application process for employment as a direct services provider with One Mainstream, Petitioner was subject to a routine pre-employment background screening pursuant to section 435.04. The screening revealed the existence of two disqualifying criminal incidents (resulting in three charged offenses) in Petitioner’s past. The offenses were described in the Joint Prehearing Stipulations as follows: In April 1998, Petitioner committed her first disqualifying offense, Domestic Violence Battery, a first degree misdemeanor. Petitioner failed to appear before the court and an arrest warrant was issued. Subsequently, Petitioner pled nolo contendere to the offense and adjudication was withheld. Petitioner was approximately thirty-four years old at the time of this offense. Petitioner was ordered to pay various court costs/fines. In January 2002, Petitioner contemporaneously committed her second and third disqualifying offenses, two counts of Domestic Violence Battery, first degree misdemeanors. Petitioner failed to appear before the court and an arrest warrant was issued. Petitioner contends there was no physical violence involved in these offenses. Petitioner pled guilty to the offenses and was adjudicated guilty. Petitioner was approximately thirty-seven and nine months old at the time of this offense. Petitioner was ordered to serve thirty days in the county jail and pay various court costs/fines. As a result of the background screening results, Respondent determined that Petitioner was disqualified from further employment in a position of special trust with children or the developmentally disabled. On February 16, 2015, Petitioner filed her Request for Exemption. All such requests are made to the Department of Children and Families, which conducts the initial background investigation. The file was assigned to Beatriz Blanco, DCF’s central region background screening coordinator. By July 10, 2015, the request for exemption had been assigned to Respondent. Daniella Jones, APD’s state office exemption background screening coordinator, requested additional information regarding Petitioner’s drug counseling and anger management courses. The record is not clear as to which items contained in Respondent’s Exemption Review file, if any, were submitted in response to Ms. Jones’ request. Among the items submitted by Petitioner in support of her Request for Exemption were a completed employment history record; information related to her having obtained a certified nursing assistant license; and six letters of recommendation. The Exemption Review file also included Petitioner’s written explanation of the disqualifying offenses and subsequent non- disqualifying incident1/; and copies of law enforcement, prosecution, and court documents related to the disqualifying offenses, a subsequent non-disqualifying incident, and three prior non-disqualifying incidents. Petitioner responded to the best of her ability to each request for information. Among the factors identified by Mr. Lewis as bases for the recommendation of denial of the exemption by staff was the perception that Petitioner’s answers to questions about her past conduct were “immature,” that she did not take responsibility for some of the past incidents, and that she did not show sufficient remorse for those incidents. The exemption request was ultimately provided by APD staff to the director of APD, who entered the notice of denial on August 27, 2015. Petitioner’s Background Petitioner grew up in a tough neighborhood in Brooklyn, New York. Her parents were hard drinkers, and she was raised in an environment in which the use of alcohol was accepted. By the time she was 17 years of age, Petitioner was a drinker and a “brawler.” Over the years, Petitioner’s issues with alcohol led her into drunken choices that resulted in the brushes with law enforcement and the criminal justice system described herein. Petitioner readily acknowledged that she had been an alcoholic during the times when she committed the disqualifying offenses. The Disqualifying Offenses 1998 Disqualifying Offense On or about April 18, 1998, Petitioner was told by a friend that her husband was staying with a girlfriend at an apartment in a nearby town. Petitioner “had some drinks” and went to the apartment to confront her husband. She burst in on the husband and his girlfriend unannounced and became embroiled in a brawl. The police were called. By the time the police officer arrived, Petitioner was gone. The police report,2/ which was based on the statements of the husband and his girlfriend, indicated that Petitioner threw a conch shell at the husband, striking him in the head, whereupon she left the apartment, returning to throw a boot at the husband which missed and broke a clock. Since Petitioner was not on the scene, and based on Petitioner’s testimony described herein, an inference is drawn that the husband and girlfriend painted as exculpatory a picture as possible, omitting anything that could cast any blame on the husband for the incident. Petitioner testified that the altercation was not nearly as one-sided as portrayed in the hearsay police report, with the husband holding her down and choking her at one point. She denied throwing the conch shell, but admitted throwing the boot and breaking the clock. Although the evidence suggests that Petitioner may indeed have thrown the shell, the evidence also supports that the husband was more than a passive victim. Petitioner was arrested for “domestic violence (simple).” She pled nolo contendere to Battery (Domestic Violence), a first-degree misdemeanor. Adjudication of guilt was withheld, and Petitioner was ordered to pay $620 in court costs. 2002 Disqualifying Offense On or about January 23, 2002, Petitioner was involved in an altercation with her boyfriend, in which her sister was involved. Petitioner was, according to the police report, “intoxicated and [ ] belligerent.” Petitioner had earlier received an inheritance from her mother, which she used to buy a house in Tampa, Florida. Her boyfriend moved in with her. The money soon ran out. Nonetheless, the boyfriend would not get a job, would not contribute to expenses, and would not move out. Petitioner and the boyfriend got into an altercation when she tried to evict him, during which Petitioner hit him with a frozen porterhouse steak. Petitioner indicated that she selected that as her weapon of choice, since he was eating all of her steaks but not paying for them. Petitioner was unclear as to the involvement of her sister, Geraldine Dreviak née Schubert, who also lived in Petitioner’s house, but denied that her sister was injured during the fracas. Petitioner introduced a letter from Ms. Dreviak in which Ms. Dreviak confirmed the boyfriend’s indolence, described her participation in requests that he leave, and substantiated Petitioner’s testimony that Ms. Dreviak was not injured. No objection was raised as to the authenticity of the letter, though it was noted that the letter was hearsay. The letter was admitted, and is used in this proceeding “for the purpose of supplementing or explaining other evidence.” § 120.57(1)(c), Fla. Stat. Thus, the evidence supports a finding that Ms. Dreviak suffered no physical injury in the altercation between Petitioner and her boyfriend. As a result of the altercation, Petitioner was arrested for “simple battery.” She pled guilty to Battery (Domestic Violence), a first-degree misdemeanor. Petitioner was sentenced to 30 days in jail, with credit for time served, and assessed $678 in court costs and liens. Petitioner completed or was lawfully released from all nonmonetary sanctions imposed by the courts, and all fees and costs related to the two disqualifying offenses were paid. Other Non-Disqualifying Offenses Properly Considered Offense In September 2002, Petitioner was arrested in New York with several other persons for Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor. The controlled substance was cocaine. Petitioner contended she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. She testified that she just wanted to be done with the incident, and failed to appreciate the effect it would have in her later life. Petitioner was sentenced to time served and her license was suspended for six months. The incident was not only a singular and isolated event of its kind, but was Petitioner’s last involvement with law enforcement. Improperly Considered Offenses As set forth in the Joint Prehearing Stipulations, Petitioner was involved in the following non-disqualifying offenses: In September 1983, Petitioner committed the offense of Disorderly Conduct. Petitioner was convicted for this offense and adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately nineteen years and five months old at the time of this offense. In October 1988, Petitioner committed the offense of Criminal Possession of Stolen Property. Petitioner contends she was wrongfully accused, but pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately twenty-four years and six months old at the time of this offense. In December 1994, Petitioner committed the offense of Criminal Mischief with Reckless Property Damage. Petitioner pled guilty to the offense and was adjudicated guilty. Court records concerning this offense were destroyed in compliance with the Criminal Court of New York City’s records retention policy. Petitioner was approximately thirty years and eight months old at the time of this offense. Respondent considered it to be significant that Petitioner was unable to provide information regarding non- disqualifying incidents3/ despite the fact that she had no control over New York City’s records retention policy. Mr. Lewis noted that it would have been to the benefit of Petitioner to have provided records of those non-disqualifying offenses since, without those records, Respondent could not fully review that information. In denying the exemption, Respondent considered the information in totality, including the non-disqualifying offenses committed from 1983 through 1994. Petitioner’s failure to provide a “detailed explanation” of those offenses was a factor in Respondent’s decision. Section 435.07(3)(b) plainly provides that: The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. (emphasis added). Considering evidence of non-disqualifying crimes committed prior to the disqualifying offenses exceeded the powers and duties granted by the Legislature. Thus, Respondent’s consideration of non-disqualifying offenses that occurred prior to the conviction for the disqualifying offenses was error. Evidence of Rehabilitation Petitioner’s last disqualifying offense occurred on January 23, 2002. Petitioner’s last involvement with law enforcement of any kind occurred in September 2002. Petitioner has no arrests or involvement with law enforcement of any kind since then. At some point, the passage of time itself is evidence of rehabilitation. While by no means dispositive, the passage of almost 14 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner showed contrition and remorse for the disqualifying offenses. Petitioner has been married since 2008 to a man that she describes as supportive. Thus, the stresses of the abusive relationships that led to her disqualifying offenses have been alleviated. Petitioner initially provided letters from six persons who were acquainted with Petitioner, two of whom testified at the final hearing. The letters were sincere, left the impression that they were written by persons with knowledge of Petitioner’s present character, and were consistent with and corroborated by the testimony of witnesses at the hearing. When Petitioner filed her Request for Administrative Hearing, she provided letters of support from four additional persons who knew Petitioner, one of whom testified at the final hearing. As with the previous letters, the letters were sincere, and fully consistent with the witness testimony taken during the hearing. Petitioner has been licensed as a certified nursing assistant, though the date of her licensure was not specified. She has not been able to practice under her license due to the issues that are the subject of this proceeding. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was when she was a drinker. Petitioner’s Work History The Employment History Record form that is part of the Request for Exemption requests “employment history for the last three years.” Petitioner provided an employment history that indicated employment from May 11, 2011, to the date of the filing of the Request for Exemption. During that period, Petitioner was employed to perform custodial duties at the First Baptist Church of Weeki Wachee Acres, and worked as a cook for functions held at the church. Her work ethic and performance was, and is, exemplary. In addition to the foregoing, Petitioner has attended to the needs of Billy Bowling on a volunteer basis for the past five or six years. Mr. Bowling, who is 49 years of age, is significantly developmentally disabled. At the hearing, he displayed obvious affection for Petitioner. Mr. Bowling’s mother, Patsy Bowling Anderson, testified that, at one time, the family employed a licensed direct service provider who was unacceptably rude, and upset Mr. Bowling. Since then, Petitioner is the only person outside of her family that Mrs. Anderson allows to care for Mr. Bowling. Mrs. Anderson testified that she had complete trust that Petitioner would do nothing that would result in harm to her son. Her testimony was substantiated by that of Major Anderson. The testimony of the Bowling/Anderson family was credible and compelling, and is accepted as convincing evidence of Petitioner’s rehabilitation. In addition to her care for Billy Bowling, Major Anderson and Mrs. Anderson testified that Petitioner, on her own time and without compensation, provides care and assistance to elderly neighbors, and to children at their church, all without incident. Their testimony is credited, and is accepted as further evidence of Petitioner’s rehabilitation. Additional Clear and Convincing Evidence of Rehabilitation Mr. Lewis testified that when disqualifying offenses involve violence, Respondent looks for evidence of anger management counseling. The information provided to the APD director suggested that Petitioner had undergone no anger management courses that would mitigate the possibility of a recurrence of the incidents that occurred in 1998 and 2002. The lack of such evidence was, in this case, a significant factor in the recommendation of denial to the director. Although the evidence of counseling in the Exemption Review file was spotty, the evidence adduced at hearing from Petitioner and Mrs. Anderson was convincing that Petitioner is an active, and successful, participant in Alcoholics Anonymous. Petitioner acts as a sponsor for others and on occasion, has taken it on herself to conduct meetings when group leaders have failed to appear. She has been sober for more than ten years. Since both of Petitioner’s disqualifying offenses were largely fueled by alcohol, ongoing participation in Alcoholics Anonymous is a more appropriate and effective means of rehabilitation than a class in “anger management.” Petitioner has been fortunate to find herself in what, by all accounts, is an embracing and supportive community. The individuals testifying on her behalf expressed their firm conviction that Petitioner had turned her life around, with Mrs. Anderson, who has known Petitioner for 14 years, characterizing the change as “remarkable.” None of the witnesses could identify any reason to suggest that Petitioner would not be able to provide capable and safe services to children and developmentally disabled persons. Ultimate Findings of Fact Petitioner meets the objective criteria for an exemption from disqualification established in section 435.07(1). When the decision was made to deny the exemption, it appears that APD staff provided the director with information as to non-disqualifying offenses that occurred prior to the disqualifying offenses. It is not known how, or whether, that impermissible information may have colored the director’s decision. Nonetheless, an evaluation of Petitioner’s suitability for an exemption should be made without consideration of those earlier events. The credible testimony and evidence in this case established, clearly and convincingly, that Petitioner has been rehabilitated from her disqualifying offenses, and that she currently presents no danger to the vulnerable population served by Respondent if she is allowed to be employed as a direct service provider. The concerns expressed by Respondent in formulating its intended action, without the benefit of the hearing testimony, particularly those regarding her lack of “anger management” classes and her lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities approving Petitioner, Catherine Schubert Rivera’s, request for an exemption from disqualification. DONE AND ENTERED this 10th day of November, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of November, 2015.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: Respondent, (hereafter HRS) notified Petitioner (hereafter Starke) of a disallowance in Starke's Medicaid cost report by a letter which was received by Starke on October 4, 1983. The disallowance letter informed the Petitioner that pursuant to Rule 10-2.35, Florida Administrative Code, any request for a formal hearing must be "received by" HRS within 30 days or the hearing shall be deemed waived. Starke mailed its petition for formal hearing on November 3, 1983, a Thursday. The petition was received by HRS on November 7, 1983, a Monday. HRS denied Starke's petition for hearing on the grounds that the request for the hearing had not been received by HRS within 30 days of the date Starke received notice. The date by which the Petition had to be received was November 3, 1983. If HRS had allowed three (3) days for filing by mail, the petition would have been timely filed.
