The Issue The issue for consideration in this hearing is whether Petitioner should be granted an exemption from disqualification from certain employment.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, was the state agency responsible for screening the employment of individuals employed in certain occupations within this state. Petitioner, Jose Ramon Arazo, is married to Stephanie Arazo, who at the time and for a number of years prior to the marriage, operated a child day care center in Largo, Florida. Under the provisions of Chapter 435, Florida Statutes, various positions of trust require screening of federal and state law enforcement records to see if the applicants for such positions have a record of charge or disposition. Various positions have differing requirements for screening. Those positions classified as Level II require a finger print and agency check with the Federal Bureau of Investigation and the Florida Department of Law Enforcement. Those positions classified as Level I do not. If the agency check discloses the applicant has been charged with a criminal offense, the Department then determines the disposition of the allegation and obtains court records regarding the court action and verifying any probation imposed. The Department's District V Director has promulgated a policy to be followed in that District that stipulates that an exemption from disqualification will not be granted to any individual who is on probation after conviction of a felony and for three years after release from probation. If probation is not imposed by the court, the same policy provides that an exemption will not be granted within three years of a felony conviction, as is provided for in the statute governing exemptions. Petitioner has been charged with several felonies in the past. On July 18, 1983, he was arraigned on a charge of grand theft, to which he pleaded not guilty. However, on August 29, 1983, he changed his plea to guilty and was placed on probation for three years. Thereafter, in December 1985, a warrant was issued for his arrest alleging various violations of the conditions of his probation, including such offenses as being delinquent in the payment of the cost of his supervision; moving from his residence without the prior consent of his probation supervisor; failing to work diligently at a lawful occupation; and failing to make required restitution. In July 1986, he was again the subject of an arrest warrant for ten further probation violations of a similar nature. No evidence was presented as to what action was taken for those violations, but on April 4, 1986, he pleaded guilty in Circuit Court in Pinellas County to grand theft and was again placed in a community control program for two years. There is also evidence in the record to indicate that in September 1986, he was sentenced to confinement for 18 months as a result of the grand theft in Pinellas County. In May 1989, Petitioner was arrested in Hillsborough County and charged with possession of cocaine, a second degree felony, and with obstructing an officer without violence, a first degree misdemeanor. He entered a plea of guilty to the offenses and on May 2, 1989, was sentenced to three-and-a-half years in Florida State Prison. In an indictment dated December 3, 1991, Petitioner was charged with one count of grand theft in Hillsborough County. He entered a plea of nolo contendere and on October 14, 1994, was sentenced to five years imprisonment. When Petitioner was released from prison in 1998, he was placed on probation for a period of two years and is currently on probation status. He indicates he has successfully participated in this period of probation and was told the probation authorities plan to recommend his release from probation in the near future. No independent evidence to support this contention was offered, though Petitioner presented a statement from correctional officials who supervised him while he was incarcerated at the Tampa Community Correction Center and at the institutional level, that he has shown a significant reformation of character and a good ability to deal with everyday problems in a professional manner. From their joint unsworn statement, it would appear these individuals consider Petitioner a likely candidate to be a productive member of society in the future. Petitioner's wife has been put out of business because Petitioner lives with her in their home which was her place of business. Because of his presence, even though he works outside the home most of the time the children are there, she cannot care for children in the home because of regulations prohibiting it. She has been in business for a number of years and apparently her center has a good reputation in the community. One client, Mrs. Perry, by unsworn written statement commends Mrs. Arazo's performance and indicates that even though she saw Petitioner only a few times, he was one of her daughter's favorite people. He also had a positive influence on her son, preaching the virtue of hard work. Mrs. Perry does not consider Petitioner a threat, and she has no fear of his being near her children. In fact, she is of the opinion it a good thing for the children to see the loving and supportive interplay between Petitioner and his wife. Another client, Mrs. Mineo, has been a foster parent to a number of children over the years, many of whom she has placed in Mrs. Arazo's care, agrees. During the time she has known Petitioner, she has never seen him to be other than very professional. She describes him as a hard worker, well-mannered, and deserving of a chance. She believes him to be trying hard. Mrs. Arazo asserts that Petitioner is no threat to the well-being of any of the children who attend her center. He has, to her knowledge, never hurt a child, and she would have nothing to do with anyone who would. His relationship with the children in her care is very positive, and the children love him when he is there, which is not often. He is not an employee of the center and, in fact, has nothing to do with it. He has made mistakes in the past, has paid for them, and has worked hard to overcome them. In her opinion, he deserves a chance. Petitioner admits he has done wrong in the past on multiple occasions, and he is not proud of the things he has done wrong. He does not believe in rehabilitation except in the physical sense, but he believes in the power of an individual to recognize his wrong ways and reform himself. He believes he has done this. He took the opportunity to learn better life-skills while he was in jail and has reformed his way of thinking and his attitudes. During the total six years he spent in prison, he was given only one disciplinary referral. He learned a trade and has a full-time job. He is doing the best he can and wants a chance to prove himself, so as not to hurt his wife's business.
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent, in her capacity as a corrections officer for the alleged violation of Section 943.1395(7), Florida Statutes (2005)?1
Findings Of Fact Respondent was certified by the Commission on November 20, 1997, and was issued Correctional Certificate No. 176344. On November 22, 2005, Investigator Sally Cole was a law enforcement officer with the Jefferson County Sheriff's Office (Sheriff's Office) headquarted in Monticello, Florida. In her capacity as a law enforcement officer she had authority to serve arrest warrants. While Investigator Cole was in her office on the date at issue, the dispatcher for the Sheriff's Office called to tell Investigator Cole that there was a "lady in the lobby" of the office and jail complex related to the Sheriff's Office, who had an outstanding warrant pending against her. The woman referred to was Respondent, who was in Monticello, Florida to visit her husband, who was incarcerated at the Jefferson County Jail. Investigator Cole went to obtain the warrant which had been issued from Gadsden County, Florida. When Investigator Cole confirmed the information concerning the warrant issued by Gadsden County for Respondent's arrest, Warrant Number 05-717CFA, referring to a felony, Investigator Cole went to find Respondent. Investigator Cole located Respondent who was leaving the lobby of the Sheriff's Office complex and walking to the parking lot. Investigator Cole approached Respondent in the parking lot and explained information concerning the warrant. When Investigator Cole approached the Respondent, she told the Respondent that she was Investigator Sally Cole. When Investigator Cole tried to explain the information concerning the Gadsden County warrant to Respondent, the Respondent in reply continued to say that "she had never gotten in any trouble." Investigator Cole told Respondent that the Respondent was under arrest in view of the warrant from Gadsden County. Respondent got into her car. Two other persons were in the Respondent's automobile. They were her children. The children were ages 12 and 15. Investigator Cole told the Respondent to get out of the car. Respondent refused. Respondent started to become belligerent. Eventually Respondent got out of the car. By that time the Sheriff's Office dispatcher had made contact with other law enforcement officers, deputies, working for that agency. This contact was made because of a concern that Respondent was not being cooperative with Investigator Cole. Those persons who were contacted were Investigator Christopher Smith and Corporal Gerald Knecht. After Respondent got out of her car, Investigator Cole took her by the elbow to guide her inside the complex to be booked under the warrant issued by Gadsden County. Respondent started screaming at the deputy "to get her hands off of her." At that point the other deputies were in attendance to assist Investigator Cole. Respondent was not cooperating and tried to pull away from Investigator Smith when he was assisting in the escort. Investigator Smith told Respondent to cooperate and stop resisting. His identity was established by the badge on his belt which would remind Respondent that he was a law enforcement officer. During the incident, with her car keys in her hand and the attempt by the deputies to control her hands, Respondent in jerking away cut Corporal Knecht, either with the keys or her fingernails. This caused a minor laceration to the deputy. By the time the Respondent was brought inside the complex, she was "kind of dropping her weight, not wanting to walk and flailing her arms." This is understood to mean that someone had to support Respondent's weight. In addition Respondent was swinging her arms around, not with the intent to strike anyone, but snatching them away. Respondent was very upset and belligerent; not wanting to cooperate. Once in the lobby to the Sheriff's Office, Respondent began to be more difficult by trying to sit down and impede the escort. As the corridor to the jail was approached, then Corporal Virgil Joyner of the Jefferson County Sheriff's Office came to assist in controlling Respondent, in an effort to escort her to the area where she would be booked. Corporal Joyner had heard the commotion from where he was located in the booking area of the jail. Respondent was being very loud. He observed the struggle that the other deputies were having in trying to maintain control and advance Respondent into the jail portion of the Sheriff's Office. He got behind the Respondent and started pushing her in the direction of the jail portion of the Sheriff's Office. Finally, Respondent was placed in secure confinement in the jail part of the Sheriff's Office. Later when Investigator Cole went back to talk to Respondent, she apologized and said she was upset and again stated that she had never been in trouble and that she had not stolen anything. This refers to the nature of the arrest warrant from Gadsden County, which was in relation to allegations of theft. Because of the difficulties that the officers had experienced in trying to serve the warrant and book the Respondent, Investigator Cole charged the Respondent with resisting arrest with violence. That charge forms the basis for the present case.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 943.1395(7), Florida Statute, suspending the Respondent's correctional officer certificate for a period of 20 days, to be followed by one year probation with appropriate conditions for successfully concluding the probationary period. DONE AND ENTERED this 21st day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 August, 2007
The Issue The issue in this case is whether the Department of Juvenile Justice (Respondent) properly calculated secure juvenile detention center expenses for which Hillsborough County (Petitioner) is responsible under state law.
Findings Of Fact As required by law, the Respondent prospectively assessed the Petitioner for juvenile detention costs for the 2006-2007 fiscal year. The Petitioner timely filed objections to the Respondent's assessment. The Respondent generally denied the objections, although the evidence indicated that representatives of both parties attempted to address objections through the exchange of relevant information, a practice that was continuing immediately prior to commencement of the administrative hearing. According to the testimony presented at the hearing, the parties remained in disagreement regarding 9,258 instances where "disposition dates" were unavailable (the "no date" cases). The relevant statute requires that the Petitioner bear the costs of detention prior to "final court disposition," a phrase which is otherwise undefined by the statute. Although the parties agreed that Final Orders issued by the Respondent based upon prior litigation between the parties identified a definition of "final court disposition," the parties apparently disagreed on the application of the definition. At the hearing, the Respondent offered testimony that the agency's records would identify disposition dates for juveniles transferred to the care and supervision of the Respondent. The Respondent's records were reviewed to confirm that there were no disposition dates identified therein for the "no date" cases. The Petitioner presented no evidence to establish that such disposition dates were available. The Petitioner's witness essentially asserted that any court order in a juvenile detention case is a dispositional order upon which the Respondent becomes responsible for the expenses related to detaining the juvenile. The Respondent asserted that unless and until a juvenile is committed to the care and supervision of the Respondent, such expenses remain the responsibility of the Petitioner. Neither the statute nor the previous Final Orders suggest that fiscal responsibility for a juvenile is transferred to the Respondent upon the issuance of any court order, regardless of whether the order assigns responsibility for care and supervision of the juvenile to the Respondent. The Petitioner also asserted that some of the "no date" cases listed addresses for the juveniles that were the Respondent's offices, indicating that the Respondent had assumed responsibility for care and supervision (and costs) for such juveniles at some point. After the hearing, and without objection by the Petitioner, the Respondent submitted a notarized affidavit from an individual identified as Norman Campbell, chief probation officer for Hillsborough County, wherein the affiant stated that the facilities at the identified addresses were offices of providers providing contract services to juveniles through the Department of Children and Family Services, and further stated that the Respondent has offices within some of the facilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent issue a final order amending the annual reconciliation as follows: Responsibility for disputed cases which lack disposition dates but include addresses of the Respondent's office locations are assigned to the Respondent; and Responsibility for disputed cases which lack disposition dates and do not include addresses of the Respondent's office locations are assigned to the Petitioner. DONE AND ENTERED this 30th day of June, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of June, 2009. COPIES FURNISHED: Brian Berkowitz, Esquire Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive Tallahassee, Florida 32399-3100 Stephen M. Todd, Esquire Hillsborough County Attorney’s Office Post Office Box 1110 Tampa, Florida 33601 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact Respondent was certified by Petitioner as a law enforcement officer on June 4, 1985, and was issued certificate number 32-85-502-02. The certificate has remained current through the present. Respondent served as a correctional officer for the Highlands County Sheriff's Office for about seven years, until he resigned shortly after the incident described below. At the time of this resignation, he was a corporal. Throughout his employment with the Highlands County Sheriffs Office, Respondent has been a model correctional officer. Unlike some correctional officers at the County jail, Respondent is not overbearing with the inmates, but frequently finds the time to try to help them with their problems. He does not swear publicly or privately. He is 5' 9" and weighs 185 pounds. In late December, 1991, a large number of inmates were housed in the Highlands County jail. The juvenile cellblock in particular was at capacity, and there was no place to isolate individual juvenile inmates from other juvenile inmates. At the time, the juvenile cellblock contained four juveniles: E. M., O. M., C. S., and C. L. Except for C. S., the juveniles are all between 5' 7" and 5' 9" and 140-150 pounds. C.S. stands 6' 2" and weighs about 200 pounds. Except for C. L., the juveniles had been causing trouble in the cellblock. They had flooded the cellblock, destroyed a television, and engaged in other disruptive behavior. E. M. and O. M. had also been threatening to rape and batter C. L., who is intellectually challenged and physically vulnerable to the other juveniles. After receiving reports of the threats, Respondent ordered that E. M., O. M., and C. S. be brought downstairs from their cellblock to the booking office where Respondent worked. A correctional officer brought the juveniles to Respondent and lined them up near a wall. Respondent questioned the juveniles in the hallway in the booking office. This is a crowded, busy area. He questioned them in the presence of the correctional officer who had brought the juveniles down and within a few feet of several other correctional officers and other employees of the Highlands County Sheriffs Office. Respondent was unaware that C. S. had played no role in threatening C. L. Respondent's questioning of C. S. was uneventful. In questioning O. M. and E. M., however, Respondent was unable to communicate to them the importance of good behavior in the cellblock. Reasonably fearing that the juveniles might carry out their threats to injure C. L., Respondent became more insistent that they behave themselves. Instead of indicating a willingness to obey Respondent's orders not to harm the other juvenile, O. M. and E. M. defiantly leaned into Respondent's face, clearly conveying their rejection of his demand for their cooperation. When O. M. tried to walk by Respondent, Respondent, who is right-handed, lightly tapped O. M. in the side of his head so as to cause him to remain where Respondent could address him. There is insubstantial evidence that Respondent also touched E. M. However, even if he did touch E. M. to get his attention, Respondent did so in an even lighter fashion than he touched O. M. Without further physical contact, Respondent, now in a louder tone, emphasized that he wanted the juveniles to behave and demanded that they not bother C. L. again. Neither O. M. nor E. M. was in any way injured by any physical contact with Respondent. Any physical contact on Respondent's part never threatened physical or emotional harm to O. M. or E. M. Sometime after the above-described incident, following an investigation, the Highlands County Sheriffs Office allowed Respondent to resign rather than face termination. Respondent resigned rather than contest the matter.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. ENTERED on November 22, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on November 22, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3381 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7: rejected as unsupported by the appropriate weight of the evidence. 8: rejected as irrelevant. The relevant behavior of the juveniles is described in the order. 9: adopted or adopted in substance. 10: rejected as irrelevant. 11: rejected as irrelevant and subordinate. The only apology from Respondent pertained to his becoming agitated orally--not physically. 12: rejected as irrelevant. COPIES FURNISHED: A. Leon Lowry, II Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Dawn P. Whitehurst, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Attorney Linda Rodriguez-Torrent 3750 US 27 North, Suite 12 Sebring, Florida 33870
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character, in violation of Section 943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional probation officer on February 1, 1991, and as a criminal justice training instructor on December 7, 1999. Her respective certificate numbers are 20851 and 205697. Respondent was first employed by the Department of Corrections (DOC) on August 10, 1990. She was employed as a correctional probation officer. As a result of promotions, Respondent became a DOC Correctional Probation Specialist in February 1995, so that she was responsible for, among other things, various administrative duties, such as handling citizens' complaints of employee misconduct and coordinating training events. In April 2001, Respondent filed a charge with the Equal Employment Opportunity Commission, alleging that DOC forced her to work in a hostile environment. On February 15, 2002, Respondent, alleging the same facts, commenced a legal action against DOC in the United States District Court, Southern District of Florida, Case No. 02-60236-CIV. As part of the federal litigation, DOC filed a motion for summary judgment, arguing, in part, that Respondent's complaint failed to claim damages. In response, on March 28, 2003, Respondent, representing herself, filed a lengthy affidavit, to which she personally attested. In the affidavit, Respondent swore to the following statement: I requested assistance from management [following the departure of the other Correctional Probation Specialist from Respondent's office and DOC's failure to fill the empty position], but they refused to assign another Specialist to the office to assist me. As a result I had to work an average of five hours per week extra in overtime without pay to properly supervise this caseload to prevent from being reprimanded, suspended or terminated by [DOC]. I was not paid for this time. The evidence is clear that Respondent did not work overtime, with or without pay. The Correctional Probation Supervisor who directly supervised Respondent at the time testified at the hearing. Obviously not hostile to Respondent, the supervisor testified definitively that during the relevant period in the affidavit--March 2, 2001 through May 9, 2002--she was intimately familiar with Respondent's work, including her itinerary and travel logs. The supervisor testified that Respondent incurred no overtime whatsoever during this period, and this testimony is credited in its entirety. Respondent's sworn statement in the affidavit is false and was false at the time that Respondent made it. Respondent's sole purpose in making this false statement was to deceive the court and show an element of damages that did not, in fact, exist. DOC terminated Respondent on August 1, 2003. She has not since worked in a job that requires certification from Petitioner.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificates as a correctional probation officer and criminal justice training instructor for one year retroactive to August 2, 2003; placing these certificates on probation for two years from the date of the final order; and requiring Respondent to attend an ethics course approved by Petitioner. DONE AND ENTERED this 18th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 18th day of January, 2006. COPIES FURNISHED: Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Faye E. Wright-Simpson
The Issue Whether Petitioner has presented clear and convincing evidence that he is of good moral character, and should be granted an exemption from employment disqualification, thereby allowing him to work in a position of special trust or responsibility pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact On April 25, 1995, the Orlando Police Department responded to an emergency call from Petitioner's residence. Petitioner was arrested and charged with domestic violence, aggravated assault and false imprisonment. The domestic violence and false imprisonment charges were subsequently dropped. Petitioner entered a plea of nolo contendere to the reduced misdemeanor charge of simple assault upon his wife, an act of domestic violence. On September 18, 1996, adjudication of guilt was withheld by the Orange County Circuit Court. Petitioner was given credit for 43 days time served in the Orange County Jail. He was also ordered to pay court costs. Petitioner was not placed on probation and was not ordered to attend domestic violence counseling. Petitioner disputes the narrative contained in the charging affidavit and claims that at no time did he threaten his wife, and that the firearm was present in the room only for cleaning, and was not displayed inappropriately. Petitioner's description of the events is not credible. Petitioner began work as a detention care worker at the Orange Regional Juvenile Detention Center in October 1995. The position required a level 2 background screening be conducted. On August 23, 1996, Petitioner submitted an affidavit of Good Moral Character which did not disclose his arrest or sentence. In August of 1996, a background screening request packet was submitted to the Background Screening Unit of Respondent's Inspector General's office. A preliminary FCIC/NCIC screening check conducted on Petitioner revealed that he had a disqualifying offense (assault on a spouse). His background screening received a rating of "Unfavorable Disqualifying." In a letter from Respondent dated August 7, 1997, Petitioner was notified that he had been disqualified and was, therefore, ineligible to work in a caretaker's position with Respondent. This disqualification was based upon the 1995 domestic assault charge. Petitioner is a 52-year-old Divinity School graduate and former church minister. Petitioner holds a Bachelor of Arts Degree from Bethune-Cookman College in Daytona Beach, and a Master of Divinity Degree from Morehouse School of Religion in Atlanta. Prior to commencing his employment with Respondent, Petitioner had successfully worked with juveniles for many years in a variety of capacities, to-wit: school teacher, counselor, youth group leader, civic leader, and minister. Petitioner received numerous awards and certificates documenting his involvement with and commitment to the welfare of his community and of juveniles in particular. After starting his work as a Detention Care Worker at the Orlando Regional Juvenile Detention Center, several Juvenile Detention Center workers in both supervisory and co-worker roles testified to the exceptional quality and caliber of Petitioner's work with juveniles. Since the alleged incident of domestic violence three years ago, no claim of any other alleged illegal conduct has been made against Petitioner.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request for exemption from disqualification for employment in a position of special trust be GRANTED. DONE AND ENTERED this 2nd day of June, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 2nd day of June, 1998. COPIES FURNISHED: Timothy Terry, Esquire 1407 East Robinson Street Post Office Box 536914 Orlando, Florida 32801 Lynne Winston, Esquire Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Respondent's temporary directive, which requires probation officers to request and obtain supervisor approval on a case-by-case basis before incurring travel expenses for certain field visits, meets the definition of a "rule" in section 120.52(16), Florida Statutes (2011),1/ which should have been promulgated as such.
Findings Of Fact Respondent is the state agency with "supervisory and protective care, custody, and control of the inmates, buildings, grounds, and property, and all other matters pertaining to [specified correctional facilities and programs] for the imprisonment, correction, and rehabilitation of adult offenders[.]" § 945.025(1), Fla. Stat. (setting forth Respondent's jurisdiction). By far, Respondent's resources, including personnel, are primarily devoted to Respondent's responsibilities over correctional facilities and programs. There are approximately 17,000 certified officers on the correctional institution side. Respondent also is the state agency responsible for supervising offenders who are granted conditional release from incarceration or who are granted parole by the Parole Commission (chapter 947, Florida Statutes), as well as the state agency responsible for supervising probationers placed on probation (or in community control, known commonly as house arrest) by a court (chapter 948, Florida Statutes). Collectively, persons who have been conditionally released, parolees, and probationers will be referred to as "offenders." A relatively small percentage of Respondent's resources, including personnel, are devoted to the supervision of offenders. There are approximately 2,100 certified parole and probation officers providing community supervision. Organizationally, Respondent's supervisory functions fall under the umbrella of Community Corrections. The supervision of offenders statewide is divided into a northern and southern region, each covering ten of the state's 20 judicial circuits. Each region is headed by a regional director, who oversees the supervision of offenders within the region's ten judicial circuits. Each of the 20 judicial circuits has a circuit administrator. Each circuit also used to have a deputy circuit administrator, but that position was eliminated in 2009. Reporting to the circuit administrators are probation supervisors, who supervise and coordinate the activities of individual probation officers and probation officer specialists. Offenders are assigned to certified probation officers and probation officer specialists, who directly carry out the supervisory functions. See § 948.01(1)(a), Fla. Stat. (an offender on probation or community control is to be supervised by an officer meeting the qualifications in section 943.13, Fla. Stat.). A probation officer specialist is a probation officer with a certain level of experience to whom the offenders with the most serious criminal records are assigned. Unless otherwise specified, the term probation officer will be used, in the broad sense, to include both probation officers and the more experienced probation officer specialists. In carrying out its community supervisory functions, Respondent's goals are all of the following: to ensure compliance with the conditions of supervision imposed by the court or by the Parole Commission; to ensure public safety; to foster rehabilitation of the offender; and to reduce or eliminate future victimization. Probationers may be placed on probation, in lieu of incarceration, or as part of a split sentence that includes incarceration followed by probation. §§ 948.011 and 948.012. The starting place for supervision of a probationer is the court's order of supervision, which specifies the terms and conditions of probation. Respondent is charged with preparing a form order of supervision for the courts to use. § 948.01(1)(b). The form order prepared by Respondent and used by the courts reflects the standard conditions of probation which may be imposed by the courts, enumerated in section 948.03. The form order also provides options for the court to exercise its authority and discretion to impose special terms and conditions. See, e.g., §§ 948.031 through 948.039. The standard conditions of probation that may be imposed by a court in its order of supervision are broadly worded and general in nature and include the following: Report to the probation and parole supervisors as directed. Permit such supervisors to visit him in his or her home or elsewhere. Work faithfully at suitable employment insofar as possible. Remain within a specified place. Live without violating the law. The statutes and standard terms of probation do not dictate or specify how, precisely, Respondent is to carry out its supervisory function in monitoring offenders to serve the goal of ensuring compliance with these terms. The concept of "supervision" is not quantified, such as by specifying how often an offender must report to his or her probation officer or whether and how often probation officers may or will visit an offender in his or her home or elsewhere. A court's order of supervision could theoretically provide a condition specifying that a probationer must go to his or her probation officer's office twice a month or five times a month. However, the one sample order of supervision entered in evidence in this case did not impose any such terms quantifying the number of office visits or other visits that the unidentified probationer had to make with his or her probation officer. With respect to "supervision," section 948.12 provides a distinction for violent offenders who are on probation following incarceration by providing that these offenders "shall be provided intensive supervision by experienced probation officers." However, just as the statutes do not purport to specify or quantify what is meant by "supervision," there is no statutory specification for what is meant by "intensive supervision." Respondent has had, apparently as far back as 2002, internal procedures in place to provide detailed processes for probation officers to follow in carrying out their duty to supervise offenders assigned to them. These procedures are published in a 41-page document called Procedure 302.303, which Respondent considers a "restricted access" document for internal use only. One subject addressed in Procedure 302.303 is an offender classification system. The current classification system was designed in-house and then validated by the Florida State University School of Criminology. The system considers a number of variables and is used by Respondent as a way to group offenders in an effort to ensure that supervision is provided at a level commensurate with the danger or risk the offender represents to the community. This offender classification system, which is not promulgated as a rule, is not the subject of Petitioner's challenge. Procedure 302.303 also addresses the subject of contacts expected to be made by a probation officer with individual offenders assigned to the officer. In general terms, Procedure 302.303 specifies minimum contacts, by type and frequency, that probation officers are expected to make, or try to make, for each of their assigned offenders. The types of contacts include office visits, meaning the offender comes into the probation officer's office for a meeting; other kinds of visits, scheduled or unscheduled, when the probation officer travels outside the office to visit or attempt to visit the offender in his home, in his place of employment, or another place; and field visits with third parties, when the probation officer travels outside the office to visit or attempt to visit the offender's employer, treatment providers, family, neighbors, or other third persons who might have information about the offender. Different minimum contact requirements, by type and frequency, are provided for each of the different offender risk classification categories in Procedure 302.303. The minimum contact standards are performance standards that apply to probation officers; without the minimum contact requirements, some probation officers might do less than the minimum. These minimum contact standards, which have not been promulgated as a rule, are also not the subject of Petitioner's challenge. Instead, Petitioner's challenge is directed to a recent temporary directive by Respondent that suspended some aspects of the (unpromulgated) minimum contact standards in Procedure 302.303. In lieu of these minimum contact standards, Respondent's directive provides that probation officers need to request and receive permission of their supervisors on a case-by- case basis to incur travel expenses for certain field visits. As a related part of the directive, supervisors are given discretion to approve travel expenses for any field visit if there is reason to believe there may be a violation of a condition of supervision or if there is reason to believe that there is a threat to public safety. The challenged directives were first communicated verbally on February 29, 2012, in a telephone conference call between Jenny Nimer, assistant secretary of Community Corrections, and the Community Corrections regional directors, and then reduced to writing in the following memorandum dated March 2, 2012, on the subject of "Reduced Travel" (Reduced Travel Memo) from Assistant Secretary Nimer to Community Corrections regional directors and circuit administrators: On 2/29/12 directives were provided for adjustments to be made on some non-critical supervision activities. As these directives are temporary and related to "restricted" policy areas they were given verbally; existing written policy will not be changed. Our goal is to reduce the travel budget by focusing on mission critical activities without compromising public safety. Travel related to core operational duties will continue; however all travel will be reviewed for efficiency. NO adjustments have been made to travel that involves investigation of known or suspected violations, violation proceedings/subpoenas, investigations or instruction of offenders in correctional facilities. Adjustments are focused on reduction of department established minimum contact standards and administrative duties. There is an urgent need to reduce travel costs for the remainder of the fiscal year; however public safety is the utmost priority and supervisors maintain the discretion to approve any travel that is needed to accomplish officer safety and protection of the community. For the months that adjustments are in place (March, April, May and June) officers will annotate electronic field notes for offenders requiring field contacts during the month, as follows: CN--"Contact Standards Adjusted". Alternative methods to verify (and re-verify) residence and employment during this period, including making telephone calls to the landlord and employer or instructing the offender to provide bills and paychecks to show proof of residence and employment will be utilized. Contact codes for purposes of electronic case notes for residence and employment verification will be HV, EN, or EV and text should indicate the alternative method utilized for verification. Planned Compliance Initiatives will continue; partnerships established with local law enforcement remain essential to enhance surveillance and contacts made in the community. These contacts should always be documented in case notes. Circuit Administrators are directed to reach out to judiciary, state attorney and law enforcement to ensure that they are aware of the limited scope of this reduction and that contacts required to ensure offender supervision and/or threats to public safety will not be compromised. Thank you for your cooperation during this difficult time. The Reduced Travel Memo was distributed to probation officers as the means by which Respondent communicated to its probation officers that they would not be expected to comply with all of the minimum contact requirements set forth in Procedure 302.303 between March 1, 2012, through the end of the fiscal year, June 30, 2012. The expectation was, at the time of the challenged statement, that this cost-saving measure was temporary and that the (unpromulgated) minimum contact requirements in Procedure 302.303 would resume as of the new fiscal year beginning July 1, 2012. As of the final hearing on June 6, 2012, Respondent's expectation was unchanged. The announced temporary replacement of minimum contact requirements based on risk category with a procedure for supervisor review and approval of field contacts remained just that--temporary--and the expectation was that the minimum contact standards set forth in Procedure 302.303 would resume for the fiscal year beginning July 1, 2012. Petitioner hinted at, but offered no evidence to prove the notion that Respondent did not really intend to resume the minimum contact standards in the fiscal year beginning July 1, 2012.4/ The Reduced Travel Memo and a March 2, 2012, letter from Secretary Kenneth S. Tucker (Tucker Letter), represent the challenged agency statements in that these two documents memorialize the temporary directive.5/ As explained in the Tucker Letter: Due to a 79 million dollar deficit, the Department has had to make temporary modifications to field contact requirements in order to reduce travel expenditures by probation officers. . . . Our probation officers will continue to make field contacts with sex offenders and community control offenders in order to closely monitor sex offender conditions and/or house arrest requirements. Probation officers will continue to monitor other supervised offenders' compliance with conditions of supervision and probationers will still be required to meet monthly with their probation officer at the office. In addition, probation officers will make field contacts in the community as necessary to investigate non-compliance or possible violations. Probation officers will also continue to participate with law enforcement in Planned Compliance Initiative (PCI's) in the community. Probation officers will use this opportunity to spend more time with offenders in the office or on the telephone, assisting with job referrals or other resources and services needed. Community Corrections undertook an analysis of its budget in an effort to identify expenditures where cost savings might be realized to help reduce the budget deficit. The three significant budget categories of expenditures were salaries, leases, and expenses. There had been a hiring freeze in place for some time already, and so an effort was made to not cut personnel to save salary costs. There also had been a concerted effort to reduce lease costs by consolidating offices to eliminate some leases. The viable short-term option to cut costs for the remainder of the fiscal year was in the expense category, which was predominately travel reimbursement. It was determined that, over the year, Community Corrections was averaging between $250,000 and $300,000 per month in travel reimbursement. Some travel reimbursement had already been reduced before the temporary directive challenged here. For example, Community Corrections personnel, including probation officers, might travel to participate in training programs. However, training had already been greatly limited. Some travel reimbursement could not be reduced, such as reimbursing probation officers for necessary travel for court appearances. In these instances, efforts were made to use state cars and to encourage carpooling, if possible. Community Corrections assessed the number of field contacts and attempted contacts that were being made by probation officers to comply with Respondent's minimum contact standards and the travel reimbursement associated with them (i.e., the contacts). Respondent estimated that its temporary directive, challenged here, would reduce travel costs by $150,000 per month for each of the four months in which the directives would be in place. In total, Respondent expected to save $600,000. Respondent's actual experience following issuance of the Reduced Travel Memo and Tucker Letter shows that Respondent's estimates were on target. In February 2012--the last month before the temporary suspension of some of the minimum contact standards--travel reimbursement totaled $277,000. After switching to a procedure of case-by-case probation officer request and supervisor review to approve field visits, travel reimbursement was down to $99,000 in March 2012, a savings of $187,000, compared to February. In April 2012, travel reimbursement dropped to $80,000. The evidence established that the discretion afforded probation supervisors in the Reduced Travel Memo is true discretion vested in supervisors to review requests and act on a case-by-case basis to approve field visits. That discretion has been exercised on numerous occasions to authorize a field contact. There was no evidence of any probation officer having submitted a request to make a field visit to investigate a possible violation of a probation condition or where there was a public safety issue that was not approved by his or her supervisor. To the contrary, the evidence established that requests are being made and leeway is being provided to probation officers to travel, if they can articulate a reason for doing so. However, for one or two probation officers who do not accept that they must request approval and justify their travel expense on a case-by-case basis and who simply ask for block reinstatement of the minimum contact standards, without articulating any reason why field visits are needed for particular offenders, those requests have been denied. As the Reduced Travel Memo and Tucker Letter suggest, there are other tools available to probation officers besides incurring the expense of field visits, which are often equally effective to accomplish the goal. For example, a field visit to an offender's employer is certainly one way to verify employment and to verify the offender's attendance, but telephone calls may well suffice to obtain the same information at much lower costs. There are also other ways to attempt to verify residence besides a personal home visit. An offender can be required to present documentation, such as a utility bill, rental agreement, or pay stub showing the offender's address. An offender can be made to come in for office visits more frequently than once a month. A probation officer can telephone the offender frequently, and the voice mail message or background noise may give some reason to believe there is a need for a field visit. A probation officer can call family members and neighbors to check on an offender and to verify information. A probation officer can enlist the help of a local law enforcement officer to check on an offender. In short, for the period of Respondent's urgent need to reduce costs, probation officers have been asked to work a little harder and more creatively from their desks, while reserving travel expenses for field visits to the cases where they have some reason to think a field visit is needed. Petitioner presented the testimony of one probation officer specialist, Kimberly Schultz. As a specialist, this officer handles a case load disproportionately made up of sex offender probationers (for whom the temporary directives did not suspend minimum contact standards) and the next category down on the risk scale--maximum offenders. Officer Schultz testified that she believes that public safety is best served by the old minimum contact standards in (unpromulgated) Policy 302.303. Officer Schultz suggested, but failed to prove, that public safety is compromised by the temporary directive. Under the temporary directive, Officer Schultz has only requested approval once from her supervisor to make a field contact based on a suspicion she developed that the offender may be in violation of his probation requirements. That single request was approved. Officer Schultz did not identify any instance in which public safety was jeopardized because a field contact was not allowed. Instead, Officer Schultz spoke to the increased possibility that allowing more travel to make surprise visits to offenders' homes or places of employment would reveal suspicious behavior or incorrect information. Certainly, Officer Schultz has the experience to draw on to offer the view that, in a general sense, increased field visits would serve to increase the possibility of discovering probation violations or other issues with offenders. In an ideal situation with unlimited resources, a probation officer following every move an offender makes could well come to find that the offender is not "liv[ing} without violating the law," as required in a standard probation condition. However, such an ideal situation obviously does not exist. Instead, Respondent has taken action to manage its limited resources. The evidence did not show that Respondent's temporary directive has threatened public safety. Officer Schultz attempted to suggest that, in the single instance when she requested a field contact, she would have discovered sooner that the offender was not living where he said he was, if she had made the minimum field contacts under Procedure 302.303. Her testimony did not bear that out. Officer Schultz testified that an offender assigned to her in March 2012, came in for the required office visits in March and in April, and he filled out the required monthly reports giving his address, telephone number, and other contact information. When the offender came in for his May office visit, the offender was supposed to stay for a drug test, but he left. Officer Schultz tried to call the offender at the number he had provided to check to see if he had misunderstood. That is when she learned that the phone number the offender had given her "wasn't a good number." Officer Schultz requested and was given approval to incur travel to investigate and learned, then, that the offender was not living where he said he was. While Officer Schultz contends that, in the above example, a field visit to verify the offender's address would have identified the problem sooner, Officer Schultz admitted that she had not previously tried to call the offender. Indeed, she said that she never calls her offenders on their cell phones. Thus, instead of incurring travel expense for a field visit, Officer Schultz could have attempted to verify the offender's office report immediately in March through other ways, such as calling the phone number provided and learning much sooner that the offender had provided a phone number that was not good. Officer Schultz might have checked for a home phone number associated with the address the offender gave; she learned when she went there that the offender's cousin lived there, and the cousin volunteered that the offender did not live there. Officer Schultz could have required this offender, and could require all of her offenders, to come into the office multiple times per month. She could have required this offender to bring in a utility bill for his residence, whether in his name or someone else's name. Had Officer Schultz tried alternative verification means, she may have been able to contact the cousin sooner. It was evident from Officer Schultz' testimony that she has become accustomed to operating under the guidance provided in unpromulgated Procedure 302.303 and does not like being asked temporarily to work harder and more creatively from her office to find other ways to conduct surveillance and monitor offenders that do not cost Respondent as much in travel expenses as her travel in the field used to. It seemed that rather than trying to replace the field visit time with alternative investigation techniques, Officer Schultz has done little to fill the gap with constructive methods to monitor her offenders using alternative means. Indeed, when Officer Schultz was asked how she was making use of her new-found office time since she is spending less time in the field, her first response was, "I'm organizing my closed files." Officer Schultz expressed concern that a probation officer could be subject to discipline if he or she were to not follow the temporary directive. However, there was no evidence that any probation officer had refused to request supervisor review and approval for a field visit, much less that discipline resulted. Officer Shultz did not represent that she had refused to follow the temporary directive or that she intended to in the few weeks remaining in the fiscal year. Petitioner's representative testified that the temporary directive harms its 2,100 certified probation officer members, although the directive does not apply to the other approximately 17,000 certified members who serve on the correctional institution side of Respondent. Thus, the temporary directive applies to only about 12 percent of Petitioner's members. Nonetheless, Petitioner's representative asserted that its members are affected by the temporary directive because they are all members of communities with a concern for public safety.
The Issue Whether Respondent, the Department of Juvenile Justice (the Department or Respondent), provided Petitioner, the County of Volusia (Volusia County or Petitioner), a point of entry to challenge the Department's 2008-2009 reconciliation regarding Volusia County and the Department's shared costs for secure detention care for juveniles.
Findings Of Fact The State of Florida is responsible for providing detention care to juveniles. Volusia County and the Department have a joint obligation to contribute to the financial support of juvenile detention care pursuant to section 985.686(1), Florida Statutes.1/ Volusia County is a political subdivision of the State of Florida and is mandated by section 985.686(3) to pay the costs of providing detention care for juveniles only for the period of time prior to final court disposition, exclusive of certain costs as set forth in the statute. The State of Florida is responsible for all other costs of secure juvenile detention. The Department is responsible for administering the cost-sharing requirements. Any difference between the estimated costs and actual costs paid by Petitioner shall be reconciled by Respondent at the end of each fiscal year pursuant to section 985.686(5). The administrative rules enacted by the Department provide that a county is to be given a credit for any overpayment. Volusia County paid $3,739,325 in twelve monthly payments of $311,610.38 based on the Department's fiscal year 2008-2009 Secure Detention Cost Share Estimate. On or about December 7, 2009, the Department issued its Annual Reconciliation for fiscal year 2008-2009, which set forth Volusia County’s FY 2008-2009 share of the year-end cost of secure detention, and assigned Petitioner a credit for overpayment in the amount of $111,040.17. On invoice number 201002-64, dated January 5, 2010, Respondent provided Volusia County a credit of $111,040.17, designated as “FY 08-09 Reconciliation.” The Department has adopted the administrative law judge’s Recommended Order entered in DOAH Case No. 10-1893 (consolidated with seven other cases), Miami-Dade County, et al. v. Department of Juvenile Justice, Case No. 10-1893, et seq. (Fla. DOAH Aug. 22, 2012)(Miami-Dade Recommended Order), as set forth in Okaloosa County v. Department of Juvenile Justice, 131 So. 3d 818, 819 (Fla. 1st DCA 2014), which required the Department to provide an annual reconciliation that reflected each county’s actual costs. For FY 2008-2009, the actual cost per day for secure detention for a juvenile was $220.81. For FY 2008-2009, Volusia County’s total pre- dispositional days were 8,679. For FY 2008-2009, Volusia County’s actual costs were $1,916,409.90. For FY 2008-2009, Volusia County overpaid the Department $1,822,915.10. Volusia County is substantially affected by the reassessment of its actual costs of detention for FY 2008-2009. For fiscal year 2008-2009, Volusia County is owed an additional credit of $1,711,874.93 for overpayment. Volusia County filed its Amended Petition for Administrative Hearing on April 16, 2013, challenging the FY 2008-2009 annual reconciliation and seeking a refund for its overpayment. Volusia County’s substantial interest is of a type and nature for which the undersigned has jurisdiction in that it will determine Volusia County’s actual cost of secure detention care for FY 2008-2009 and determine whether Volusia County is entitled to a credit.2/ Volusia County was not a party to DOAH Case No. 10- 1893 resulting in the Miami-Dade Recommended Order or Okaloosa County v. Department of Juvenile Justice, 131 So. 3d 818, 819 (Fla. 1st DCA 2014), referenced in Finding of Fact 10, above. In this case, the Department’s response to request number one of Volusia County’s Second Request for Admissions admitted “that Volusia County was not provided a point of entry into proceedings as required under section 28-106.111 of the Florida Administrative Code to challenge the fiscal year 2008- 2009 annual reconciliation.” See Exh. P-5, pp. 6-9. The Department’s response to Volusia County’s request number two of Volusia County’s Second Request for Admissions admitted “that Volusia County was not provided a clear point of entry to challenge the fiscal year 2008-2009 annual reconciliation pursuant to Capeletti Brothers, Inc. v. Department of Transportation, 362 So. 2d 346 (Fla. 1st DCA 1978) cert. denied, 368 So. 2d 1374 (Fla 1979).” See Exh. P-5, pp. 6- 9. At no time has the Department attempted to seek relief from its admission that Volusia County was not provided a point of entry to challenge the FY 2008-2009 reconciliation. Based upon the Department’s admission, it is found as a matter of fact that Volusia County was not provided with a point of entry to challenge the FY 2008-2009 reconciliation. As Volusia County was not provided with a point of entry to challenge the FY 2008-2009 reconciliation, Count I of Volusia County’s Amended Petition challenging the Department's FY 2008-2009 reconciliation was timely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order finding that the Department failed to provide Volusia County with a point of entry to challenge the Department's 2008-2009 reconciliation regarding Volusia County and the Department's shared costs for secure detention care for juveniles, and further providing that the Department shall, without undue delay, provide a revised assessment to Volusia County stating that for FY 2008-2009: Volusia County’s actual costs of providing predisposition secure juvenile detention care for fiscal year 2008-2009 were $1,916,409.90; Volusia County overpaid the Department $1,822,915.10; and, Volusia County is owed an additional credit of $1,711,874.93 for overpayment. DONE AND ENTERED this 29th day of October, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of October, 2014.
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character by unlawfully acquiring or obtaining, or attempting to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge on or about July 16, 1999; by unlawfully withholding information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance on or between April 1, 1999, and August 5, 1999; by corruptly using or attempting to use his official position as a law enforcement officer in such a manner as to secure a special privilege for himself or others, to wit: prepared a fictitious Offense/Incident Report as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Tad K. Moody, is a certified law enforcement officer in the State of Florida. He was issued Law Enforcement Certificate No. 160029 on February 11, 1996. Respondent was employed by the City of Tampa Police Department as a police officer during the period February 11, 1996, through May 19, 2000. In August of 1998, Respondent received an on-duty injury and was prescribed pain medications as a result. Respondent signed a contract with Dr. Greenberger stating that he would only receive controlled substances from Dr. Greenberger. Respondent went to several different doctors after August 1998 and received prescription pain medications from all of them. Respondent never advised his treating physicians that he was receiving Hydrocodone or other pain medication from each of his treating physicians. Respondent did not inform any of the physicians that he was receiving prescription pain medications from any of the other physicians. On or about July 16, 1999, Respondent reported to his treating physician’s office that his vehicle was stolen with his medication in it. Dr. Batas required substantiation of the theft in the form of an auto theft report prior to issuing additional medication. On or about July 16, 1999, Respondent prepared a false Tampa Police Department Offense/Incident Report, reporting that his vehicle containing medications had been stolen. He submitted it to Dr. Batas' office in order to receive additional medication. On August 4, 1999, Respondent presented a prescription for 90 Vicoprofen to the Eckerd Drug Store pharmacy at 1904 West Lumsden in Brandon, Florida. Dr. Steven J. Tresser, M.D., had written Respondent a prescription on August 4, 1999, for 40, not 90, Vicoprofen. The Eckerd Drug Store personnel identified Respondent as the individual who submitted the altered prescription for Vicoprofen or Hydrocodone. Respondent admitted to Detective Lusczynski, during an interview, that he had an addiction problem due to the back pain he suffered as a result of the injury he received in 1998. In late 1999, Respondent was charged with obtaining a controlled substance by fraud (2 counts) and obtaining drugs from a physician by withholding information. On or about July 24, 2000, Respondent entered into a Drug Court Agreement for 18 months' probation with the Thirteenth Judicial Circuit's State Attorney's Office. As part of the agreement, Respondent was required to successfully complete the Drug Court Program, including evaluation; counseling; random urinalysis; and pay $372 court costs, plus $40 a month toward supervision. Respondent's drug case was dismissed on March 14, 2002, based on his successful completion of the Drug Court Program. The evidence is clear and convincing that Respondent unlawfully acquired possession of a controlled substance by misrepresentation on or about July 16, 1999. The evidence is clear and convincing that Respondent unlawfully withheld information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance during the relevant time period. The evidence is clear and convincing that Respondent corruptly used, or attempted to use, his official position as a law enforcement officer in such a manner as to secure a special privilege for himself by preparing a fictitious Offense/Incident Report on or about July 16, 1999.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2000). Respondent's certification be revoked. DONE AND ENTERED this 20th day of February, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 20th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Tad K. Moody 10124 Woodberry Road Tampa, Florida 33619 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services 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
