The Issue The issues are whether Respondent maintained workers' compensation coverage for certain employees, and, if not, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. (2002). Respondent is a corporation domiciled in Florida and engaged in the business of installing motorized aluminum hurricane shutters and security systems. On June 3, 2003, four of Respondent's workers installed aluminum shutters on a single-family residence located at 20799 Wheelock Drive, No. 909, Heron's Glen, North Fort Myers, Florida. Respondent did not have workers' compensation insurance for the four employees. In addition, Respondent failed to maintain workers' compensation coverage for the benefit of ten employees from June 21, 2002, through June 27, 2003 (the relevant period). Respondent stipulated that Respondent was an employer during the relevant period, and that Respondent failed to maintain workers' compensation coverage for five employees identified in the record as Ricardo Mendez, Pedro Rojas, Willie Marrow, Eric Mendez, and Izarate Cartas. Respondent further stipulated that Petitioner correctly assessed the penalty amounts for those employees. The remaining five individuals that Respondent contends were not employees are identified in the record as Jessica Mendez, Gelacio Zarate, Manual Mendez, Jesus Espinoza, and David Mobley. Respondent asserts, in relevant part, that these individuals were "casual labor" and not "employees" within the meaning of Section 440.02(15)(d)5, Florida Statutes (2002). Under the Workers' Compensation Law in effect on June 21, 2002, an "employee" did not include a person if the employment satisfied the conjunctive requirements of being casual and not in the course of the trade, business, profession, or occupation of the employer. § 440.02(15)(d)5, Fla. Stat. (2002). Section 440.02(5), Florida Statutes (2002), defined the term "casual," in relevant part, to be work that satisfied the conjunctive requirements of being completed in ten working days or less, without regard to the number of persons employed, and at a total labor cost of less than $500. Ms. Mendez and Mr. Zarate were Respondent's employees during the relevant period. Respondent paid each more than $500, and each individual performed services that were in the course of the trade, business, profession, or occupation of Respondent. Ms. Mendez worked as an assistant to the wife of the president and sole shareholder of Respondent. The wife maintained accounts and pulled permits for Respondent. Ms. Mendez assisted the wife by answering telephone calls and accompanying the wife when the wife pulled permits for Respondent. Respondent paid Ms. Mendez $760 during the relevant period. Respondent paid Mr. Zarate $800 during the relevant period to help build large roll-down, accordion, or panel shutters. Building shutters is an activity required in the course of Respondent's business. Mr. M. Mendez and Mr. Espinoza were Respondent's employees during the relevant period. Although Respondent paid each person less than $500, Mr. M. Mendez and Mr. Espinoza each performed cleanup work for Respondent. The amount of cleanup required depended on the number of roll-down shutter installations Respondent had at a given time. Constructing roll-down shutters produces a lot of paper and scraps that must be cleaned up to keep the shop clean. Mr. M. Mendez and Mr. Espinoza each performed services directly related to the construction of shutters by Respondent. Respondent argues that Mr. Mobley was either casual labor or an independent contractor. Mr. Mobley did not satisfy the statutory requirements for either classification. Mr. Mobley did not satisfy the requirements for casual labor. Mr. Mobley was an electrician who installed motorized shutters for Respondent. Mr. Mobley secured electrical permits needed for Respondent to do the electrical work essential to Respondent's business. Mr. Mobley accompanied Respondent's president to the construction site, ran the electrical, and wired the motor for the shutter that Respondent was assembling. Although Mr. Mobley worked for Respondent for only three days, Respondent paid Mr. Mobley approximately $1,200. Under the Workers' Compensation Law in effect during the relevant period, Section 440.02(15)(c), Florida Statutes (2002), required an "independent contractor" to satisfy all of the following requirements in Section 440.02(15)(d)1, Florida Statutes: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. Mr. Mobley satisfied some of the definitional elements of an independent contractor. He maintained a separate business as a sole proprietor not required to obtain a federal identification number, and incurred principal expenses related to the service or work he performed for Respondent. There is insufficient evidence to find that Mr. Mobley satisfied the remaining requirements for an independent contractor. The evidence was insufficient to show that Mr. Mobley could be held liable for failure to complete the work or services he performed for Respondent, had continuing or recurring business obligations, or that the success or failure of his business depended on the relationship of receipts to expenditures. The evidence is clear that Mr. Mobley would not have performed work for Respondent if he were to have suffered a loss. Mr. Mobley was Respondent's employee during the relevant period. Mr. Mobley failed to satisfy the definition of either casual labor or an independent contractor.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that affirms, approves, and adopts the Amended Stop Work and Penalty Assessment Order. DONE AND ENTERED this 9th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2004. COPIES FURNISHED: Marshall L. Cohen, Esquire Marshall L. Cohen, P.A. Post Office Box 60292 Fort Myers, Florida 33906-0292 Andrea L. Reino, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues to be determined are whether Driving Under the Influence (DUI) with property or personal damage and DUI manslaughter, are crimes that relate to the practice of, or the ability to practice, dentistry, within the meaning of section 466.028(1)(c), Florida Statutes, as alleged in the First Amended Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts At all times material to this proceeding, Respondent, Matthew Moye, D.D.S., was a dentist within the State of Florida, having been issued license number DN16032 on August 2, 2002. Respondent’s address of record with the Department is Marion Correctional Institution, Post Office Box 158, Lowell, Florida 32663. Respondent began his private dental practice, Big Bend Dental, in 2009. Respondent offered the following procedures in his practice: composite fillings; crown and bridgework, including preparing teeth for crowns; root canals; dentures; extractions, including molar and wisdom teeth extractions; Botox; and lip fills. Respondent has never been the subject of a disciplinary action against his license to practice dentistry. On or about October 31, 2010, while under the influence of alcohol, Respondent was involved in a motor vehicle collision in which he lost control of his vehicle on the Harbor Island Bridge in Tampa, Florida. Respondent struck three people with his vehicle, killing two, and caused property damage. On November 7, 2013, Respondent pled guilty to, and was convicted of, two counts of first-degree misdemeanor DUI with Property or Personal Damage and two counts of second-degree felony DUI Manslaughter based on the above incident. Respondent’s sentence included: 12 years of incarceration; 10 years of probation following release from incarceration; and Permanent revocation of driver’s license. Respondent has not practiced dentistry since being incarcerated. Other Findings of Fact Dr. Johnson testified that dentists operate from a position of trust, and that there is an expectation of professionalism and good judgment on the part of persons holding a license to practice dentistry. Upon his review of the police reports and court documents related to Respondent’s crime, he opined that the acts described therein evince recklessness and a lack of good judgment. As a result, he believed that the crimes affected Respondent’s practice or ability to practice dentistry. On cross-examination, Dr. Johnson candidly admitted that his opinion as it related to DUI Manslaughter was based on how he felt about that crime, and on his personal principles. He reviewed no journals or professional publications. He did not review court decisions or Board of Dentistry final orders. He was aware of no general consensus in the dental community as to whether DUI Manslaughter is a crime related to the practice or ability to practice dentistry. He had no training in substance abuse impairment, and could not state whether a single DUI could be used to diagnose alcohol abuse or impairment. As to evaluating whether an act affects the practice of dentistry, Dr. Johnson testified that “at some point along the way, there’s always going to be personal opinion. You know, could be somebody like mine. Could be a personal opinion on the Board of Dentistry.” What is clear from the totality of Dr. Johnson’s testimony is that his opinions reflect his personal belief as to whether DUI Manslaughter affects the practice or ability to practice dentistry, an opinion influenced by his self-perception as “a very black-and-white person.” Despite the stipulation as to his expertise, Dr. Johnson could identify nothing in his education or experience that made him an expert in crimes that affect the practice of dentistry, other than his years as an experienced, well-regarded, and respected oral and maxillofacial surgeon. The legislature’s 2013 amendment of section 90.702, Florida Statutes, was intended to replace the Frye standard of opinion testimony, which allows “pure opinion” testimony, with the Daubert standard, which does not. Chapter 2013-107, sections 1 and 2, Laws of Florida. In 2017, the Supreme Court declined to adopt the legislative change under its authority over procedural matters in Florida courts. In re: Amendments to the Fla. Evidence Code, 210 So. 3d 1231 (Fla. 2017). Whether the Supreme Court’s decision to decline to adopt the Legislature’s Daubert amendment bears on the issue at DOAH, an executive branch agency, is an interesting question, but one for another day. In this case, Dr. Johnson’s testimony comes down to a matter of weight. Were his testimony directed to a particular standard-of-care on the part of a licensed dentist, the undersigned would have no problem accepting his years of experience as a suitable basis for an opinion on that issue. Dr. Johnson’s opinion that the “act” of deciding to drive a vehicle while intoxicated is evidence of recklessness or lack of judgment that can reasonably affect the ability to practice dentistry. However, Dr. Johnson’s subjective belief that the unintentional outcome of that act evinces a greater lack of trustworthiness, or shows a higher degree of reckless behavior or poor judgment, does not rise to the level of competent, substantial evidence to support a finding that DUI Manslaughter is any more related to the practice of dentistry than is a DUI. There is insufficient evidence to support a finding that the act of driving under the influence of alcohol, regardless of the outcome of that act, is directly related to Respondent’s ability to provide effective and safe treatment of his patients. As it pertains to this case, the behavior that reflects on Respondent was his decision to get behind the wheel of his car while intoxicated. That is the conduct for which there is some evidence that demonstrates that Respondent exhibited “reckless behavior” and a “lack of judgment.” Counsel for Petitioner presented a well-researched and articulate analysis of the reasons underlying the legislature’s policy decision to classify incidents of impaired driving resulting in death as manslaughter. The basis for that policy decision is that a death resulting from DUI is the result of a presumptively negligent and culpable act, i.e., getting behind the wheel of a vehicle. However, the cases cited by Petitioner highlight the “policy choice” made by the Legislature to impose a heightened penalty for a DUI that results in death. The citation to State v. Hubbard, 751 So. 2d 552 (Fla. 1999), is certainly apropos, and worthy of repeating: We recognize that the Legislature accords disparate treatment to DUI and DUI manslaughter, for example. On the one hand, driving while drunk is a misdemeanor which requires at least three convictions to earn a year's imprisonment. § 316.193(2)(a) 2.c., Fla. Stat. (1995). It will only become a third-degree felony carrying a potential of five years' imprisonment upon a fourth or subsequent conviction. § 316.193(2)(b), Fla. Stat. (1995). In contrast, a drunk driver whose operation of his or her automobile causes the death of another is guilty of a second-degree felony, carrying a potential fifteen-year prison term. The Legislature clearly has made the policy choice to impose more severe sanctions on the drunk driver who kills someone than on the drunk driver who is fortuitously caught before possibly killing someone. While that may seem a bit unfair, it is hardly irrational. Id. at 565 n. 29. (emphasis added). There has been no such express legislative “policy choice” here. Rather, as it relates to this case, the Legislature has chosen to sanction conduct only to the extent that it relates to the practice of dentistry.1/ The motivation for legislative policy decisions and regulatory decisions are entirely different. See, Nadia N. Sawicki, Character, Competence, and the Principles of Medical Discipline, 13 J. Health Care L. & Pol’y 285, 295 (2010). (“Unlike criminal law, which is aimed at punishing wrongdoers, or civil law, which is aimed at victim compensation, professional discipline seeks to protect public welfare by incapacitating or rehabilitating dangerous physicians.”). The fact that the Legislature elected to punish DUI Manslaughter more severely than DUI based on the result of the act is not sufficient grounds to impose a different regulatory penalty for the same “act” based on the result. There has been no express “policy choice” by the Department that an act is more worthy of a different regulatory sanction based on its result. Again, it is the voluntary act of driving while intoxicated that reflects on the ability to practice dentistry, not the unintended, even tragic, result. The tragic outcome of Respondent’s reckless act of driving while impaired, though it certainly affects how Respondent’s behavior is treated from a criminal perspective, has little to do with whether it affects the clinical quality of his work, the quality of his patient care, or his ability to practice dentistry. The nature of the violation in this case has fairly been characterized as one of “character,” and not “competence.” As observed by Professor Sawicki, “many of the most serious disciplinary actions taken on the basis of criminal convictions involve criminal misconduct with no immediately apparent impact on patient safety or public health.” Sawicki, supra at 304. The incident here was not shown to have any effect on Respondent’s technical qualifications or abilities to practice dentistry. There was no suggestion that the DUI was the result of a broader pattern of alcohol abuse that affected Respondent’s practice of dentistry at the time of the incident. Given the terms of his probation after he is released -- neither driving nor alcohol consumption will be allowed -- there will be no possibility of a recurrence of the violation. Thus, the violation is directed to societal issues of trust and judgment, rather than ability and competence. The evidence in this case is sufficient to demonstrate that the act of driving while impaired is one that generally demonstrates recklessness and a lack of good judgment, and that such attributes can be correlated to one’s ability to effectively practice dentistry. The evidence in this case was not sufficient to demonstrate that the crime of DUI Manslaughter involves any greater degree of recklessness, or a heightened degree of poor judgment than does a DUI. Furthermore, the undersigned rejects the contention that Respondent’s inability to practice dentistry during his period of incarceration is a basis for revocation of his license. Petitioner pointed to no requirement that a licensed dentist engage in any minimum number of practice hours to maintain a license. Any necessary practical experience can be addressed in reasonable conditions as addressed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order: determining that Respondent violated sections 456.072(1)(c) and sections 466.028(1)(c) and (mm), as a result of the recklessness and lack of judgment exhibited by his decision to drive while under the influence of alcohol; placing Respondent’s license on probation for a period of one year, to commence upon his release from incarceration, with appropriate terms of probation to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5-13.005(3)(d)2.; imposing an administrative fine of $10,000 to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring reimbursement of costs to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring completion of an ethics course; requiring 100 hours of community service to be performed concurrently with that required as a condition of Respondent’s probation; and requiring an evaluation from the Professionals Resource Network. DONE AND ENTERED this 14th day of June, 2018, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2018.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented is whether Petitioner Amber Renae Baker has met her burden of proving actual innocence, thereby entitling her to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact Petitioner Amber Renae Baker was born on November 25, 1963. At the time of her conviction, she was 43 years of age. On March 28, 2006, Petitioner was charged with racketeering, in violation of Section 895.03(3), Florida Statutes, relating to her participation in her brother's escort service, which was in fact an organized prostitution ring. On April 16-20, 2007, Petitioner was tried before a jury in Escambia County, Florida, on one count of racketeering. She stood trial along with her brother, Dallas Baker, who was tried on a count of racketeering and for procuring a person under the age of eighteen for prostitution, and her mother, Mary Helen Baker, who was tried for racketeering as well. During the trial, Petitioner made a motion for judgment of acquittal, arguing that the State did not produce evidence that Petitioner knowingly participated in a pattern of racketeering activity, to wit: that the State of Florida did not produce any evidence that Petitioner knew that any of the women hired by her brother to provide escort services (a legal activity) was also providing prostitution services. Petitioner further argued that the State did not produce sufficient evidence that Petitioner intended to assist in perpetuating anything more than an escort service. The trial court denied Petitioner's motion for judgment of acquittal. The jury convicted all three defendants on all charges. Petitioner was sentenced to thirty-four and one-half months of imprisonment. On September 22, 2008, the First District Court of Appeal issued an Opinion reversing the trial court's denial of Petitioner's motion for judgment of acquittal. Baker v. State of Florida, 990 So. 2d 1221 (Fla. 1st DCA 2008). The District Court found, as a matter of law, that the State failed to present sufficient evidence to prove that she agreed to secure another person for prostitution or otherwise violated Section 769.07, Florida Statutes. Petitioner was released from incarceration on October 9, 2008. By the time she was released, Petitioner had been incarcerated for 540 days. Petitioner has never been convicted of any other felony in any jurisdiction. From 1995 through at least 2005, Petitioner answered the telephone for her brother's escort service from 1:00 p.m. until 3:00 a.m. seven days a week, arranging dates for the callers with the women who worked for her brother. When a call came in, she would describe the different girls that were available by height, weight, hair color, and bra cup size. Then Petitioner would call the woman in whom the caller expressed interest and give her the customer's phone number. The woman would decide if she wanted to go. Petitioner quoted to the customer, as she describes the men who called to hire a woman, the price of $150 to $200 per hour. During the "date," Petitioner would call the woman every hour to ask her if she was alright. After the "date," the woman would bring the money to Petitioner at her brother's trailer where she lived and answered the telephone. She knew that each of the women who worked for her brother had and was required to have a "dance card," which is the slang term for an occupational license for an exotic dancer. Petitioner contends that she did not know that her brother, with her help and her mother's help, was operating a prostitution ring. She contends that she believed that the women were simply going on dinner dates and were being paid by the customer $150 to $200 per hour to accompany a man who was also paying for dinner. She contends that she also thought that sometimes the women were hired for topless dancing or to attend a bachelor party, which meant charging the customer for four hours. Petitioner did not testify at her criminal trial on the advice of her lawyer and of her co-defendant brother. Because she did not testify, the State was not able to offer two documents into evidence. Those documents are a letter she wrote to her mother before her arrest and the transcript of an interview of her after she was arrested. The typewritten letter is undated and was confiscated from her home by the police when they executed a search warrant upon arresting her. In the letter she complains bitterly about her mother not loving her as much as she loved Petitioner's brother. Primarily, though, she complains bitterly that she has worked in the business for years without being paid even minimum wage. The letter also contains the following statements: (1) "And you have never cared that I could lose my kids because of this business. . . ." and (2) ". . . but I am gonna [sic] be left in the dirt as usual answering phones that could cause me to lose my kids. " Those statements are contrary to Petitioner's position in this proceeding that she did not know she was answering the phones and scheduling appointments for prostitution. There would be no danger of having her children removed from her custody for working in a legitimate business answering telephones and scheduling appointments. Further, photographs admitted in evidence show the condition of the trailer where Petitioner lived with her children. The conditions are deplorable and clearly unsafe. Although not obvious in the photographs, Petitioner admitted during the hearing that she allowed dog feces to remain in the trailer without removing them. Yet, she does not appear to have been worried that her children would be removed from her custody for unsafe living conditions, only for her answering the telephone for the business. The recorded and transcribed interview of Petitioner was conducted on March 27, 2006, after her arrest. The following questions and answers are relevant to this inquiry: Q. Did girls ever try to talk about sex with you? People having sex or people wanting some weird things? A. They, a couple of them would try to start talking about some weird things and I would say, I don't want to hear it. Q. What kind of weird things? A. I don't know, like walking on hot dogs. (Laughing) Q. Walking on hot dogs? Were girls allowed to talk to you about, I mean, if a girl tried to talk to you about sex what would you do? A. I would just tell them I don't want to hear about it. * * * Q. Okay. Do you believe the girls were having sex for money? Did you have a pretty good idea they were having sex for money? A. Well, I guess that's what everybody assumes. Q. Did you assume it? A. No Audible Answer. Q. Is that a 'yes' A. Um, what else can you assume? * * * Q. Really? Okay. Is there anything that you can think about that you can tell me why you would believe or what would make you think that Dallas knew the girls were having sex for money? A. I don't know. I, that's the way it's done on t.v. Q. What's, what's how it's done on t.v.? A. Services. Q. That are involved in prostitution? A. I was hoping he wasn't doing it. Q. Really? Did you feel he was? A. I guess. Q. Yes? A. I said I guess. * * * Q. . . . can you think of any conversations you and your mother had about customers or the things they liked or anything like that? A. No, just made jokes about the hot dog thing. We thought that was funny. Q. Really? What did, what did, what did he want her to do after she walked on the hot dogs? A. Let him eat them from between her toes. * * * Q. Men with feet fetishes? Never heard nothing like that? A. I don't know, they would call and ask for somebody with pretty feet sometimes. Petitioner, who professes to have had "a little bit of college," may well have avoided direct conversation regarding the real services offered by her brother's "escort service," but it is evident by her statements both in the letter she wrote to her mother and in her transcribed interview that she in fact knew that sex was involved in the "dates" she arranged and that she was at risk answering the telephones because she was participating in an illegal activity. Petitioner contends that she was an unwilling participant in her brother's business and that she was coerced into answering the telephone for the business because her brother emotionally and physically abused her and threatened her with harm. Petitioner takes two approaches in supporting her position that she was coerced by her brother into answering the telephone. First, Petitioner testified in this proceeding that her brother abused her when she was a child by calling her names and years later by beating her. Interestingly, her letter to her mother describes her brother as a "lying, back stabbing, whore hopping, white trash dog. . . ." It appears that name- calling was not a one-way street in Petitioner's family. Similarly, in her recorded interview she explained that her brother "always beat her up," but then admitted the last time was 16 years earlier. She also explained that when he had recently started cussing at her, she "told him to go to hell." The dynamic between Petitioner and her brother does not suggest duress or coercion, as Petitioner alleges. Petitioner's other approach to proving duress in this proceeding (rather than in the criminal proceeding where it can constitute an affirmative defense) is by the affidavits admitted in evidence by stipulation of the parties. One affidavit is that of Petitioner, which alleges her brother continuously beat and threatened her, a version not consistent with her testimony at the evidentiary hearing in this cause. The other affidavit is from a psychologist with solid credentials who saw Petitioner twice after her release from prison. Petitioner's attorney referred her to him for a psychological evaluation. The affidavit is accompanied by the psychologist's report. Although the evaluation showed Petitioner to have "significant emotional problems," it was clear to the psychologist that Petitioner exaggerated her symptoms for the benefit of the evaluation, and her test profiles were, therefore, only marginally valid. Even with his awareness that Petitioner was not an accurate reporter as evidenced by his several references to Petitioner's obvious attempt to influence the evaluation, the psychologist opined that Petitioner needs extended treatment and medication. There is no evidence that Petitioner has followed his recommendations. The holding in Dixon v. United States, 548 U. S. 1 (2006), makes it clear that duress is an affirmative defense and that to invoke it, a defendant must admit the crime and then affirmatively prove that the defendant was coerced by threatened unlawful and imminent harm to commit the crime. In this proceeding, Petitioner argues, inconsistently, that she did not commit a crime and that she was forced to repeatedly perform the act which constituted the crime, i.e., arranging "dates" between customers and prostitutes over a period of approximately ten years. Petitioner does not make a credible witness. Her varying explanations given at different times to different persons undermine her credibility. The purpose of this proceeding is not to determine whether Petitioner is guilty beyond a reasonable doubt of the crime of racketeering by participating in a prostitution ring, the determination that was made in her criminal trial and the test before the appellate court which overturned her conviction. Rather, in this proceeding wherein Petitioner is seeking monetary compensation for her wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that she committed neither the act nor the offense that served as the basis for her conviction and incarceration and that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. Further, she must prove her actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. A review of the appellate court opinion overturning Petitioner's conviction reveals that the State presented insufficient evidence that Petitioner knew of the unlawful nature of the "dates" she arranged. It is appropriate, therefore, that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. However, the inability or failure of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of the act or offense that served as the basis for the conviction and sentence and does not prove that she did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense. The evidence which the State was prevented from offering at her trial by her decision not to testify-- Petitioner's letter to her mother and her statements during her recorded interview--and which, therefore, was not before the appellate court conflicts with Petitioner's testimony that she is innocent. That evidence is not verifiable and substantial evidence of Petitioner's actual innocence, which is the quality of evidence the Statute requires in this proceeding. Further, Petitioner's statements to the psychologist and his conclusions regarding her mental health are not verifiable and substantial evidence of Petitioner's actual innocence. Lastly, Petitioner’s own testimony denying her guilt is not verifiable and substantial evidence of her innocence. Petitioner argues that since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” the definition should be the one found in Black's Law Dictionary. Petitioner's argument is not persuasive. The statutory scheme under which Petitioner seeks monetary compensation in this proceeding requires more than meeting a definition in a dictionary; it requires a certain quality and quantity of evidence. The Statute regulating this proceeding does not consider the legal sufficiency of the evidence as did the appellate court when it reversed Petitioner's conviction and as does Black's Law Dictionary. Rather, the Statute seeks a determination of the factual sufficiency of the evidence by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. Based upon the evidence before the trial court, the appellate court found insufficient evidence proving Petitioner guilty beyond a reasonable doubt. Based upon the evidence in this proceeding, including evidence not presented to the jury in Petitioner's criminal trial and, therefore, not reviewed by the appellate court, there is no verifiable and substantial evidence proving that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that she is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet her burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing her Petition. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 4th day of January, 2010. COPIES FURNISHED: Honorable Nickolas P. Geeker Escambia County Circuit Judge M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Ernie Lee Magaha, Clerk of Court Escambia County M.C. Blanchard Judicial Building 190 Governmental Center Pensacola, Florida 32502 Keith W. Weidner, Esquire Taylor, Warren & Weidner, P.A. 1823 North 9th Avenue Pensacola, Florida 32503-5270 Russell Graham Edgar, Jr., Esquire State Attorney's Office Post Office Box 12726 Pensacola, Florida 32575-2726
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
