The Issue The issue is whether Petitioner’s application for a license from the Florida Real Estate Commission was properly denied.
Findings Of Fact Petitioner, his Background, and the Application Leroy L. Baines, Jr., was born on October 31, 1985. Currently 29 years old, he is employed with a financial services company. He serves on the board of a non-profit organization called Butterfly Foundation Group. The organization works with underprivileged and at-risk youth. He also works with J.J.’s Boxing Club and Global Village, both non-profit entities. In 2005, Mr. Baines pled no contest to a criminal traffic infraction: operating a motor vehicle without a valid license (“Criminal Traffic Infraction No. 1”). He was adjudicated guilty and sentenced. Respondent’s Ex. No. 1 at 00028. The following calendar year, 2006, Mr. Baines was convicted of driving while his license was cancelled, suspended, revoked, or he was disqualified from holding a license (“Criminal Traffic Infraction No. 2”). Id. at 00022. In 2008, in the U.S. District Court for the Southern District of Florida, Mr. Baines pled guilty and was adjudicated guilty of two federal crimes: 1) conspiracy to interfere with interstate commerce by robbery, and 2) carrying a firearm during and in relation to a crime of violence (the “Federal Criminal Offenses”). Id. at 00013. Mr. Baines was sentenced to 55 months imprisonment for the Federal Criminal Offenses on June 18, 2008. He served his sentence in prisons located in Florida, Texas, and North Carolina. His sentence expired on June 30, 2014, and he was discharged from supervision on September 3, 2014. Id. at 00040. On April 11, 2014, Respondent received Mr. Baines’ application for licensure as a real estate associate (the “Application”). He answered “Yes” to Background Question 1, which asks, “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction . . . ?” Id. at 00010. After the background questions in the Application, the Application states, “If you answered ‘YES’ to any question in [the background questions], please refer to Section IV of the Instructions for detailed instructions on providing complete explanations, including requirements for submitting supporting legal documents.” Id. In the Application’s “Section IV(b) – Explanation(s) for Background Question 1,” Petitioner listed the Federal Criminal Offenses. For one of the two offenses under “Penalty/Disposition,” he wrote “Time Served”; for the other, he wrote “55 months.” Id. Under “Description” as to each of the two Federal Criminal Offenses, Petitioner wrote, “5 years Supervised Release.” Id. Despite the Application’s detailed instructions that require criminal traffic infractions to be listed (“This question applies to any criminal violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses . . . .” Id.), Petitioner failed to list the two Criminal Traffic Infractions. Petitioner’s Case Mr. Baines testified that his application should be granted because he has cooperated with Respondent by providing everything that was asked of him during the Application review process. Although he had not included the Criminal Traffic Infractions on the written Application, he freely admitted during the hearing it was his responsibility at the time he made out the Application to report them and to offer any relevant explanation of them. With regard to the Criminal Traffic Infractions, Mr. Baines testified he spent 30 days in the Orange County Jail. He seeks leniency in this application process based on his age at the time of the offenses which he claimed, at first, was 16. Noting the difference between his birthday and 2005 and 2006, Mr. Baines conceded during cross-examination that he was several years older than 16 at the time of the Criminal Traffic Infractions. Mr. Baines elaborated on the Federal Criminal Offenses explaining that he had fallen in with former high school friends whom he had not seen for some time when they recruited him to drive the get-away car in a robbery. He stated that at the time of the crime he was in possession of two guns both of which he had been carrying legally prior to the crime: a nine millimeter Glock and a .40 caliber handgun. Mr. Baines’ time in prison was spent without any violations of prison rules, according to his testimony, and he completed the post-release program successfully. His success in serving his time is the basis, Mr. Baines asserted, for his release from federal supervision so promptly after the expiration of the sentence. No documentation of “good behavior” in prison, however, was offered at hearing. In an attempt to demonstrate rehabilitation, Mr. Baines referred to his service to the Butterfly Foundation, J.J.’s Boxing Club, and the other two non-profit organizations with which he works that serve at-risk youth in the Pompano and Fort Lauderdale areas. He also averred that he had been cleared by the Department of Children and Families (“DCF”) to work with underprivileged youth for cheerleading and gymnastics although he offered no supportive documentary evidence from DCF. Mr. Baines did submit to Respondent as part of his application three documents related to rehabilitation. The first extolled his work as an employee. The second was written by a teacher at Stranahan High School who is a fellow basketball player at pick-up games in a public basketball court in Plantation, Florida. The third was written by his pastor at the Living Waters Sanctuary in Oakland Park, Florida. The authors of the letters all write highly of Mr. Baines. In support of his case for rehabilitation, Mr. Baines testified that after his conviction for the Federal Criminal Offenses, he had had only one slip-up: a urinalysis (“UA”) positive for marijuana, a substance he had used as a youth. Mr. Baines claimed that the UA was conducted only because those supervising his post-release case sent him for the testing after Mr. Baines had voluntarily acknowledged his recent use of marijuana. But for the single marijuana incident, Mr. Baines asserted under oath that his record after his conviction, in prison and out of prison during a post-incarceration discharge period, had been spotless. His admirable conduct, he testified, is what led to the court to promptly release him from federal supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner’s application for licensure as a real estate sales associate. DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 16th day of July, 2015. COPIES FURNISHED: Leroy L. Baines, Jr. 4808 Northwest 8th Court Lauderhill, Florida 33317 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Profession Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Darla Furst, Chair Real Estate Commission Department of Business and Profession Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 (eServed)
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate Number 276769. On or about July 3, 2008, Respondent was driving his vehicle on State Road 20 in Calhoun County. Trooper Philip Spaziante of the Florida Highway Patrol observed Respondent speeding and conducted a traffic stop of Respondent’s vehicle. After Respondent pulled to the side of the road and stopped, Trooper Spaziante explained to Respondent why he had stopped him. As he spoke to Respondent, he noticed that Respondent appeared to be exceptionally nervous. Respondent told Trooper Spaziante that he was on his way to Port St. Joe to spend the weekend at the beach. Trooper Spaziante then asked Respondent if he would consent to a search of his vehicle. Respondent consented to the search. Trooper Spaziante found a purple cloth “Crown Royal” bag in the driver’s side door of Respondent’s vehicle. Trooper Spaziante found a small quantity, less than 20 grams, of cannabis (marijuana) inside a Skoal (chewing tobacco) container which was inside the Crown Royal bag. Trooper Spaziante is trained in the recognition of the smell of burnt cannabis. During his nine years as a State Trooper, he has encountered cannabis many times, during traffic stops in particular. Based upon his experience, Trooper Spaziante was able to identify the substance in the Skoal can as cannabis. Trooper Spaziante then placed Respondent under arrest for possession of a controlled substance. After finding the marijuana, Trooper Spaziante contacted Deputy William Dalton of the Calhoun County Sheriff’s Office and requested that he come to the scene and assist. After Deputy Dalton arrived, the two officers continued the search of Respondent’s vehicle. Deputy Dalton is a police canine handler. Deputy Dalton is also trained in recognition of cannabis and cannabis paraphernalia. He is the handler for Gina, a K-9 dog certified in narcotics investigation by the American Canine Police Association. Deputy Dalton deployed Gina to conduct an exterior “sniff” of Respondent’s vehicle. Gina "alerted" as a result of her sniff of Respondent’s vehicle, indicating that narcotics were in the vehicle. Deputy Dalton then continued to search Respondent’s vehicle. The officers found a marijuana “blunt,” which is a cigar with some of the tobacco removed and replaced with marijuana. Trooper Spaziante observed some loose tobacco that appeared to have been removed from the cigar. The officers found a duffle bag in the back seat of the vehicle. The Respondent told the officers that the bag was his and that it contained clothing and personal items for his trip to Port St. Joe. Deputy Dalton took the duffle bag out of the vehicle where Gina “alerted” as a result of her sniff of Respondent’s duffle bag. Deputy Dalton then searched the duffle bag. Inside the duffle bag was a small smoking pipe commonly used to smoke marijuana. Deputy Dalton also observed marijuana residue in the bowl of the pipe. Respondent stated that he had forgotten that the pipe was in the duffle, and that it had been in there a long time. Respondent was arrested and charged with possession of less than 20 grams of marijuana and possession of drug paraphernalia.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order revoking the corrections certificate of Respondent, Ben C. Cramer. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 22nd day of October, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ben C. Cramer Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Mr. Marchetti was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on August 30, 2008, and was issued law enforcement certificate number 278005. Mr. Marchetti was not employed by a criminal justice agency on October 30, 2016. On that date, in the early afternoon, Deputy Lawhorn was working as a road patrol deputy with Deputy Brewster, her field training officer (FTO), during an early phase of her training. The deputies arrived at 108 Petals Road in Fort Pierce in their marked patrol unit to serve an injunction for protection, a civil restraining order, directed to Timothy Marchetti. The deputies were to identify the person to be served, provide him a copy of the injunction papers, explain what the order required, and advise of the court date. The deputies knocked on the door, and Mr. Marchetti answered the door. The deputies, wearing St. Lucie County Sheriff's Office uniforms in plain view of Mr. Marchetti, announced that they were there to serve process on Timothy Marchetti and asked to speak with him. Mr. Marchetti falsely identified himself as his brother, Mark Marchetti, with a date of birth of September 15, 1983. Mr. Marchetti added that he was often mistaken for his brother. The deputies asked when Timothy Marchetti would be returning. Mr. Marchetti responded that Timothy was at church with his mother and should return shortly. The paperwork that the deputies had been provided prior to serving the injunction included a driver's license photo, and that photo appeared to match the individual the deputies were talking to. The paperwork also indicated that Timothy Marchetti had an identifying mark, a tattoo on his biceps. When asked to see his biceps, Mr. Marchetti instead showed the deputies his triceps, which had no tattoo. Believing that Mr. Marchetti had lied to them, but wanting to continue to investigate because sometimes brothers do bear close physical resemblance, Deputy Brewster asked Deputy Lawhorn to return to the patrol unit to run the name "Mark Marchetti" through the National Crime Information Center (NCIC) database. At the vehicle, she also pulled up a picture of Mark Marchetti from the DAVID website. That picture did not match the driver's license picture in the deputies' possession or the appearance of the individual that had answered the door. Deputy Lawhorn returned to the doorway, told Deputy Brewster what she had learned and asked him to check the information. After Deputy Brewster went to the vehicle, Mr. Marchetti attempted to leave. Deputy Lawhorn blocked his way and advised him that he could not leave. Mr. Marchetti had not yet been arrested. The deputies had a well-founded suspicion that Mr. Marchetti had lied to them about his identity, and they were continuing their investigation of that crime. At this point, a woman who identified herself as Mr. Marchetti's mother came to the property and encountered Deputy Brewster. She confirmed that the individual in the doorway was her son, Timothy Marchetti. Deputy Brewster returned to the doorway and advised Mr. Marchetti that he was under arrest. After his arrest, the deputies placed themselves on either side of Mr. Marchetti to handcuff him, and Respondent pulled away in "surprise or shock" as he was being handcuffed, but there was minimal, if any, active physical resistance. After his arrest, Mr. Marchetti apologized to Deputy Brewster for lying to him about his identity. Through his deception, Mr. Marchetti resisted, obstructed, and opposed Deputies Lawhorn and Brewster in their execution of legal process. Mr. Marchetti failed to maintain good moral character in that he willfully obstructed law enforcement officers in the lawful execution of their duty to serve an injunction against him by giving them a false name and date of birth. No evidence of any prior disciplinary history was introduced for Mr. Marchetti.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Timothy J. Marchetti in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of five days, followed by a one-year period of probation subject to terms and conditions imposed by the commission. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of January, 2019.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Pamela Jan Powers, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0508538. On May 8, 1995, Respondent filed an application with the Department for licensure as a real estate broker. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. . . . Respondent responded to the question by checking the box marked "NO." Following approval of Respondent's application, and her licensure as a real estate broker, the Department discovered a "Court Status" document (the "court document") for the Circuit/County Court, Broward County, Florida, which reflected that Respondent, then known as Pamela Jan Saitta, had been charged with five offenses, as follows: DISORDERLY CONDUCT POSSES/DISPLY SUSP/REVK/FRD DL LICENSE SUSP OR REVOKED2 PERS/INJ/PROT/INS REQUIRE FAIL CHANGE ADDRESS/NAME (Petitioner's Exhibit 1.) The court document further reflected that on May 18, 1990, a plea of nolo contendere was entered to counts 1 and 3, adjudication was withheld, and Respondent was assessed costs of $105.00, but not fined. As for the remaining counts, count 2 was nolle prosequi and counts 4 and 5 were dismissed. After receipt of the foregoing information, the Department undertook an investigation, which included an interview with the Respondent. At the time, Respondent told the investigator that she had no knowledge of the charges, as reflected on the court document. Thereafter, on July 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding, which, based on Respondent's negative response to item 9 on the application, charged that Respondent "has obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against her license. On September 17, 1997, Respondent appeared before the Florida Real Estate Commission in an apparent effort to resolve the complaint informally. At that time, Respondent told the commission, under oath, that she had no recollection of the charges or disposition, as reflected on the court document.3 She acknowledged, however, that the document referred to her, but could offer no explanation. During a recess, the commission's counsel spoke with Respondent, and suggested that she try and secure a copy of the police report, as well as other useful information. (Petitioner's Exhibit 3, page 10.) Respondent, but not the Department, researched the records at the Broward County Police Department, and was able to locate a traffic accident report for February 21, 1990, that apparently related to the charges noted in the court document. (Respondent's Exhibit 1.) No police report was located. The accident report reflects that on February 21, 1990, Respondent's vehicle was struck in the rear by another vehicle. The report reads, in part, as follows: Driver of veh 1 [Respondent] had a suspended D.L. and no proof of insurance. Driver of Veh 1 [Respondent] was subsequently arrested for the suspended D.L. ss 322.34(1) No proof of insurance ss316.646(1) Fail to change address within 10 days ss 322.19 and unlawful Use of License ss 322.32(1). The vehicles were both towed by Dalys towing. There is no mention in the accident report of any disorderly conduct by Respondent or any charge of disorderly conduct against Respondent. Moreover, there is no explanation of record for the disorderly conduct charge made against Respondent, as evidenced by the court document. Regarding the events revealed by the accident report, Respondent acknowledges that these events are most likely the source of the charges that were reflected on the court document. She insists, however, that she has no recollection of receiving any citations at the time of the accident, and denies any knowledge of the court proceeding. In explanation, Respondent avers that, consequent to injuries received at the time, she has no recollection of events immediately following the accident. Regarding the court proceeding or its disposition, Respondent also avers she has no knowledge or recollection of that proceeding and did not appear in court on the charges. The only explanation she can offer for that proceeding or its disposition is that, most likely, her attorney resolved the matter, as he was resolving the civil suit that was brought against the other driver. Given the circumstances of this case, Respondent's averment that she was unaware of the charges or the disposition disclosed on the court document when she submitted the application for a broker's license, and that she was only able to connect the court document to the traffic accident after she had retrieved a copy of the accident report, is credible. In so concluding, it is observed that her testimony was candid and consistent. Moreover, her explanation afforded rational explanation for what, otherwise, would have been an irrational act. In this regard, it is observed that the charges filed against Respondent, as well as their disposition, were not serious and did not reflect adversely on her qualification for licensure as a real estate broker. Consequently, were she aware of the events, there was no rational reason to conceal them from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
Findings Of Fact Stipulated Facts Respondent was certified by Petitioner as a law enforcement officer on September 22, 1988, and was issued Certificate Number 73974. At all times material to the issues raised in the Administrative Complaint, Respondent was employed by the Putnam County Sheriff's Office as a law enforcement officer holding the rank of lieutenant. On July 12, 2004, while operating a patrol vehicle, Putnam County Deputy Sheriff Michael Kelly backed the vehicle and accidentally struck a second patrol vehicle issued to another Putnam County Deputy Sheriff, Robert Younis.1 At the time Deputy Kelly struck the patrol vehicle assigned to Deputy Younis, Deputy Kelly was traveling approximately two miles per hour. As a result of the collision, both vehicles were slightly damaged with the patrol vehicle assigned to Deputy Younis sustaining a small indentation on the left front fender. Shortly after the collision and on the same date, Deputy Kelly contacted his supervisor, Sergeant Michael Oglesbee, and verbally reported the incident to him. On November 8, 2004, Deputy Kelly arranged for the damage to the patrol vehicle assigned to Deputy Younis to be repaired at Deputy Kelly's own expense, at a local automotive repair shop, One Stop Auto Body. On November 16, 2004, Putnam County Sheriff's Office Captain Rick Ryan was present at One Stop Auto Body and observed the patrol vehicle assigned to Deputy Younis under repair. Prior to this observation, Captain Ryan had not been aware of the damage or the repairs being made to the patrol vehicle. On November 23, 2004, Deputy Kelly submitted a written report regarding the collision incident to the Putnam County Sheriff's Office. On November 30, 2004, Respondent provided a sworn statement to Lieutenant Rick Lashley of the Putnam County Sheriff's Office as part of an internal investigation. Facts determined by the evidence presented Although Sheriff's Office policy required him to do so, Deputy Kelly did not submit a written report about the incident at the time he reported the incident to Sergeant Oblesbee. Shortly after calling Sergeant Oglesbee, Deputy Kelly then called Deputy Younis to inform him of the incident. Because the damage to the vehicles was insignificant, Deputy Kelly did not immediately take steps to get the vehicles repaired. Deputy Kelly did not attempt to get the vehicles repaired until the matter was brought to his attention by Sergeant Oglesbee in November. He then took steps to get the vehicles repaired at his own expense. Deputy Kelly believed that it was his responsibility to pay for the amount of the insurance deductible. Deputies Kelly and Younis took their patrol vehicles to One Stop Auto Body for repair. At the time of the incident, Respondent was a candidate for Sheriff of Putnam County. Because he was involved in his political campaign, Respondent was often off duty and difficult to reach. Respondent was not on duty the day of the incident. At all times material to this proceeding, Richard Ryan was a captain with the Putnam County Sheriff's Office and was chief of patrol. On November 16, 2004, he went to One Stop Auto Body to get estimates on a patrol car repair. While there, he noticed another patrol car there for repairs. He had been unaware that another patrol car had received damage. He determined that the patrol car was assigned to Deputy Younis. Upon determining that the patrol car belonged to Deputy Younis, he called Sergeant Oglesbee to inquire as to why Deputy Younis's patrol car was in the repair shop. Upon learning that Sergeant Oglesbee knew about the damage, he called a meeting in his office that afternoon. Captain Ryan, Sergeant Oglesbee, Lieutenant Bowling, Deputies Younis and Kelly, and Respondent were present. Deputy Kelly does not recall any formal or informal discussion of the incident with Respondent until the November 18, 2004 meeting. According to Captain Ryan, Respondent told him at the meeting that Respondent learned of the incident a couple of weeks before. Captain Ryan worked with Respondent for between 16 and 17 years, and never had reason to disbelieve or doubt what Respondent said. As a result of the meeting, Captain Ryan instructed Respondent to write Sergeant Oglesbee a memorandum of record for not following policy, instructed Sergeant Oglesbee to write Deputy Kelly a memorandum of record for not following policy, and determined that he, Captain Ryan, would write a memorandum of record regarding Respondent. On November 17, 2004, Captain Ryan learned that Sheriff Douglas ordered Lieutenant Bowling to initiate an administrative inquiry. Lieutenant Bowling instructed Deputy Kelly, Sergeant Oglesbee, and Respondent to each write a statement of their recollection as to what happened regarding the incident. The matter was than turned over to Mr. Lashley to conduct an investigation. On December 2, 2004, Lieutenant Bowling wrote a memorandum to Lieutenant Rick Lashley regarding what was said by whom at the November 16, 2004, meeting. His memorandum described Respondent's response as learning about the incident "a week or two ago." This is substantially consistent with Captain Ryan's recollection of what was said at the meeting. Lieutenant Lashley was with the personnel office of the Sheriff's Office and was the internal affairs investigator. During questioning by Lieutenant Lashley, Respondent realized that he had been told about the incident in October, after a truancy roundup, rather than November, and acknowledged this during his interview. This is consistent with Deputy Younis's recollection that he did not discuss the incident with Respondent until a "truancy roundup" which took place sometime in October.2 Lieutenant Lashley's primary concern was not that Respondent recalled during the interview that he learned of the incident in October rather than November. Lashley commented, "Well, first he had told us in November...and then he told me in October, which is okay, you know. I mean, because people do start recalling stuff." While Lieutenant Lashley described Respondent's initial confusion as to whether or not he learned of the incident in October or November as "just inconsistencies," Lashley's real concern was whether or not Respondent actually learned of the incident around the time that it happened (July 2004). Consistent with Lieutenant Lashley's primary concern, Respondent was charged with making a false statement under oath on November 30, 2004, during the interview with Lieutenant Lashley. The key to the charge is whether Sergeant Oglesbee actually contacted Respondent shortly after the incident happened as opposed to learning about it in the fall. Sergeant Oglesbee recalled attempting to call Respondent the day of the incident using Nextel, but could not recall the substance of the conversation. When asked whether he was certain as to whether he actually reached Respondent, he responded: Q Okay, and from your testimony, I take it that you are not a hundred percent sure that you actually did contact Lieutenant Hardy? A I'm testifying on my past practice. Q Okay. But you don't have any specific recollection of speaking with him about this incident? A I cannot recall the conversation. Q And you could not swear to actually having notified him in July when this incident happened? A Just based on past practice, that it was--it would have been deemed by myself a very important issue, based upon his major supporters having been involved in a minor fender bender, but yet based upon the political atmosphere, it would have been considered a major incident. Sergeant Oglesbee recalled that there were several informal conversations regarding the incident but he did not recall Respondent's ever being present during any of them. He also acknowledged that Respondent was often unavailable for several days at a time during his campaign for Sheriff. Sergeant Oglesbee recalled a telephone or Nextel conversation with Respondent towards the end of October during which Respondent commented that Deputy Younis's patrol car needed to get repaired. When asked during his interview with Lieutenant Lashley, during which he was under oath, when he was first made aware of the incident, Respondent answered in pertinent part as follows: Hardy: Going back listening to these tapes, going back to the truancy roundup, that's when I believe I was first made aware of the dent on the vehicle, was because I observed it and I asked where the dent came from and when the deputy explained it to me, I asked if it had been reported because I was concerned about the time line. He said he reported it to Sgt. Oglesbee. I said get with Sgt. Oglesbee and let's get it taken care of. Lashley: That was during the truancy roundup, correct? Hardy: Correct. Lashley: ...or detail, back in first week in October? Hardy: That's, that's, that's where I, I remember it. Uh, I remember that it was in East Palatka, so it was at the truancy roundup, it would have to be. Lashley: Would it be safe to say that Younis and Kelly were the ones that told you of it then or, is that who you said... Hardy: It would probably have been Younis because it was his vehicle that had the damage to it, that I observed. So he had to have been there because it was his car.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order dismissing the Administrative Complaint against the Respondent, Jeffrey S. Hardy. DONE AND ENTERED this 23rd day of December, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 23rd day of December, 2005.
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
