Findings Of Fact At all times relevant hereto the Respondent was licensed as a Class "D" Security Officer and held license No. D92-09970. On April 7, 1993 Detective Janice Shine, a deputy sheriff with the Pinellas County Sheriff's office, left her office around 11:00 p.m. driving a 1984 Oldsmobile which was unmarked but not fully equipped to serve as a police vehicle. This was a spare vehicle owned by the Pinellas County Sheriff's office. While Detective Shine was stopped at a stoplight on Ulmerton Road in the left hand lane, Respondent pulled alongside of her vehicle in the center lane. When the light changed, both cars proceeded straight ahead. Respondent pulled in front of Shine's vehicle and slowed down. Shine passed him on the right, and when she did, Respondent indicated for her to pull over to the side of the road. Shine testified that Respondent told her that he was a police officer and that she was speeding. Shine replied that she was a deputy sheriff and for him to grow up. Respondent continued to follow Shine and motioned for her to pull off the road. Detective Shine used her radio to call for back up, and further down Ulmerton Road she did pull off the road. Respondent pulled up behind her. Detective Shine emerged from her car with her sheriff's badge in her hand and proceeded toward Respondent's car. Respondent got out of his car with flashlight in hand and accused Detective Shine of driving while intoxicated. Shortly after these two vehicles stopped, approximately four cars carrying deputy sheriffs and/or police pulled up at the scene. Respondent repeated his accusations against Detective Shine and requested she be given a sobriety test. The officers talked to Shine out of the presence of Respondent, then arrested Respondent on charges of impersonating a police officer. At this time Respondent was dressed in a khaki shirt which was part of his security officer's uniform, with the name of the company for whom he was working on the front of the shirt and an American flag on the shoulder. Respondent was subsequently tried in the criminal court in Pinellas County on charges of falsely impersonating an officer and was found not guilty.
Recommendation It is RECOMMENDED that the Administrative Complaint filed against George Stephanou be dismissed. DONE AND ENTERED this 8th day of November, 1993, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH NO. 93-3926 Proposed findings submitted by Petitioner are accepted except: (2) Latter part of sentence starting with "told her". (6) Rejected that Respondent told Shine he was a police officer. (10) Rejected that Respondent had emergency lights. Detective Shine testified he turned on and off his high beams. (12) Rejected that Respondent used his flashlight in an intimidating manner. COPIES FURNISHED: Henri Cawthon, Esquire Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 George E. Stephanou 24195 U.S. 19 North, Lot 444 Clearwater, Florida 34623 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue is whether Respondent obtained a real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact By application attested July 10, 1996, Respondent requested licensure as a real estate salesperson. Question 9 of the application asks: 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. If you intend to answer "NO" because you believe those records may have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." * * * Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent checked the "no" box and did not offer any explanation on the application form. Petitioner issued Respondent a license. After placing it for a month with another broker, Respondent placed the license with Sun Coast Realty Group, Inc., a broker-corporation trading as Century 21--Sun Coast Realty Group, in Fort Myers. Respondent's license remained active until October 6, 1997, when he requested that Petitioner inactivate the license until the pending disciplinary charges were resolved. Respondent's broker testified at the hearing. He testified that the customers were happy with Respondent, who dealt very honestly with the customers. The broker explained that Respondent, not the broker, elected to discontinue practicing real estate sales until the disciplinary matters were resolved, and the broker would rehire him, if Respondent retains his license, following the conclusion of this proceeding. On or about December 19, 1977, Respondent pleaded no contest and was convicted of a misdemeanor of disorderly conduct or breach of the peace in connection with a bar fight in which he was engaged in Connecticut. Then aged 20, Respondent was employed as a bouncer at the bar at which a fight broke out. Several arrests ensued. Respondent did not throw the bar stool that resulted in the injuries. Respondent was fined about $50. About 12 years later, on or about February 1, 1989, Respondent pleaded no contest to misdemeanor battery in Lee County. The court withheld adjudication and placed Respondent on probation for one year. Respondent served the probation without incident. No one was seriously injured in the incident. About three years ago, Respondent attended Charter Glade, where he remained 10 days for substance-abuse treatment. He attended his follow-up therapy, and now speaks to his pastor at church for additional advice. Respondent has not consumed alcohol since then, and he has a wife and two children. Respondent's claim that he did not disclose the criminal matters because he thought they had been sealed or expunged is discredited. Respondent concealed these matters. He did not follow the advice on the application form to ensure that these matters were sealed or expunged. He testified inconsistently at first as to his age at the time of the first incident. On the other hand, Respondent has eliminated the main source of his past problems: alcohol. He has also demonstrated his integrity in the practice of real estate sales.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of a violation of Section 475.25(1)(m), Florida Statutes, imposing an administrative fine of $1000, and suspending Respondent's license for 18 months, with full credit against the suspension for the period since October 6, 1997, that Respondent has voluntarily rendered his license inactive due to the pendency of this proceeding. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Laura McCarthy Deputy Chief Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Edward McBride Cardillo, Keith & Bonaquist, P.A. 3550 East Tamiami Trail Naples, Florida 34112-4905 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent committed the violations alleged in Administrative Complaint, as amended? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since April 30, 1982, certified by the Commission as a law enforcement officer. He holds certificate number 08-82-002- 01. Respondent is now, and has been since early 1982, employed by the Florida Highway Patrol (hereinafter referred to as the "FHP"). He currently holds the rank of sergeant, a rank he has held since 1986, with the exception of a brief period of time in 1990 when he served as a lieutenant. As a sergeant, Respondent is responsible, on a regular basis, for the direct supervision of eight troopers. There are occasions, however, when as many as 40 troopers are under his supervision. During the time that he has been with the FHP, Respondent has received numerous commendations and his overall work performance has been rated as either satisfactory or above. Only twice during the period of his employment has he been disciplined- - in 1983, for the negligent operation of his FHP vehicle, for which he received a written reprimand, and, more recently, for the incidents which gave rise to the issuance of the instant Amended Administrative Complaint. These incidents all occurred during the time Respondent held the rank of lieutenant. Respondent was promoted to the rank of lieutenant and assigned to the investigative section of the FHP's Troop "E" in Miami on or about February 1, 1990. His duties included working out of uniform (in civilian clothes) investigating driver's license fraud. Among the other investigative lieutenants assigned to Troop "E" with whom Respondent worked were Lieutenants Jimmy Hobbie, Paul Sharpe and Kenneth Glass. Respondent shared an office with Lieutenant Hobbie. They each had their own desk. Lieutenants Sharpe and Glass occupied other nearby offices. Respondent enjoyed a congenial, professional relationship with his fellow investigative lieutenants. At no time did he ever have an exchange of angry or threatening words with them. On at least three separate occasions between February 19, 1990 and April 15, 1990, while in his office and in the presence of Lieutenants Hobbie and Sharpe, with whom, at the time, he was engaged in casual, light conversation injected with attempts at humor, Respondent removed his .38 caliber FHP-issued service revolver from his holster, placed it near the side of his head, pulled the hammer partially back, and, without firing any shots, returned the revolver to his holster. On none of these occasions did Respondent intend to harm or threaten anyone. He was simply trying to be funny. Neither Hobbie nor Sharpe, however, were amused by Respondent's careless and potentially dangerous display of his firearm. 1/ To the contrary, they were troubled by Respondent's actions, but they did not express their concerns to Respondent. On March 30, 1990, Respondent displayed a firearm in arresting an individual named Mark Barken for driver's license fraud. Prior to locating and arresting Barken, Respondent had been told by Barken's brother that Barken was a heroin addict and that Barken had recently threatened the brother with a shotgun and told the brother that he was going to kill him and his wife. Based upon the information he had been provided by the brother, Respondent considered Barken to be an unstable, dangerous and violent individual. Therefore, when he received a tip that Barken was at a drug treatment and rehabilitation facility in Perrine, he asked Lieutenant Hobbie to accompany him to the facility to assist in arresting Barken. Hobbie agreed to provide such backup support. Respondent and Lieutenant Hobbie drove to Perrine and waited together outside the facility for Barken to leave. After a while, Respondent left the surveillance area for brief moment. When he returned, Hobbie advised him that Barken, or at least someone who looked like Barken, had just left the facility. Respondent thereupon got into his FHP vehicle and drove off in the direction Hobbie had told him Barken was headed. Hobbie remained behind in the surveillance area. Shortly thereafter Respondent spotted Barken, who was with a companion. As Respondent approached the two, they ran across the street into a parking lot. Respondent followed them. As he pulled into the lot, he identified himself as a law enforcement officer 2/ and ordered Barken and his companion to stop, turn around and face him with their hands up. The pair stopped, but they did not comply with Respondent's other directives, even after these directives had been given several times. Believing that it would be prudent to do so, Respondent took a shotgun with him as he exited the vehicle and initially held it in a port-arms position in an effort to gain control of the situation. Ultimately, Respondent did gain control of the situation. When Lieutenant Hobbie arrived on the scene, Barken and his companion were laying face down on the pavement and Respondent was pointing a shotgun in their direction. 3/ Following Hobbie's arrival, Respondent placed the shotgun back in his vehicle and Barken and his companion were taken into custody. On or sometime between April 16, 1990, and April 20, 1990, while seated at his desk in the office he shared with Lieutenant Hobbie, Respondent jokingly pointed his revolver out the open doorway of the office and in the direction of a reception area. As he did so, he commented to Hobbie, who was in the office with him, "Wonder what he would do if he would, you know, look up and see me pointing this gun at him." From where he was situated, Hobbie was unable to see the person to whom Respondent was referring. After making this comment, Respondent put the gun back in his holster. At around lunchtime, on or sometime between April 16, 1990, and April 20, 1990, Respondent walked into Lieutenant Sharpe's office and the two began to engage in a friendly conversation. Their discussion centered upon their plans for lunch. During the conversation, Respondent was standing immediately in front of the desk at which Sharpe was seated. At some point in their discussion, Respondent decided that he needed to tuck his shirt in his pants. Before loosening his pants, he unholstered his service revolver and laid the revolver on Sharpe's desk. As Respondent placed the revolver on the desk, he carelessly pointed the barrel of the gun in Sharpe's direction and pulled the hammer partially back. Sharpe reacted by quickly changing his position to avoid being in the line of fire in the event the revolver discharged. Respondent saw Sharpe's reaction. He immediately removed the revolver from the desk and placed it back in his holster without bothering to tuck in his shirt. Although concerned about this incident, Lieutenant Sharpe did not discuss his concerns with Respondent; 4/ however, he did report the incident shortly after it had occurred to Randy Snow, who was his, as well as Respondent's, immediate supervisor. 5/ On April 25, 1990, Respondent and Lieutenants Hobbie, Sharpe and Glass were standing in close proximity to one another in the secretarial area of Troop "E" headquarters and engaged in informal and friendly conversation when Respondent, in response to a remark make by Hobbie and in an effort to be humorous, removed his service revolver from his holster, pointed it at Hobbie's head and pulled the hammer partially back. Hobbie turned his head to the side and ducked. Glass threw his hands up and exclaimed, "That's loaded," in response to which Respondent stated, "I know it is." Respondent then put the revolver back in his holster. At the time of this April 25, 1990, incident, an internal investigation of Respondent's conduct was already underway. During the course of the investigation, Respondent, who had not yet completed his probationary period as a lieutenant, was returned to the rank of sergeant and placed on "administrative duty." Following the conclusion of the investigation, Respondent was dismissed by the FHP on the ground that he was unfit for duty. The FHP subsequently determined that it did not have just cause to dismiss Respondent for fitness deficiencies. Accordingly, pursuant to a settlement agreement with Respondent, it rescinded Respondent's dismissal and instead suspended Respondent for ten days without pay for the improper display of a weapon. In accordance with the terms of the settlement agreement, Respondent successfully participated in the FHP's Employee Assistance Program. He also took a firearms retraining course, which he also successfully completed. Since Respondent's return to work, his overall work performance has been rated as exceeding performance standards and he has received a letter of commendation from his supervisor. There have not been any reoccurrences of the improper conduct for which he was suspended. Apparently, he has mended his ways. He is today considered to be an effective, hard working and honest law enforcement officer who is an asset to the FHP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, by virtue of his having engaged in the conduct described in Findings of Fact 10, 18, 19 and 21 of this Recommended Order, and (2) issuing him a written reprimand and placing him on probation for a period of two years, during which time he shall be required to undergo firearms training and meet any other terms and conditions deemed appropriate by the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1993.
Findings Of Fact On April 29, 1999, the Department filed an Administrative Complaint against Petitioner for allegedly violating several statutes regulating his conduct as an insurance agent in the State of Florida. Pursuant to his request for an evidentiary hearing regarding those allegations, that matter was referred to the Division of Administrative Hearings on June 10, 1999, and assigned DOAH Case No. 99-2593. On July 12, 1999, Petitioner filed with the Division of Administrative Hearings the subject Petition to Determine Invalidity of Administrative Rules, and on July 15 he filed his Amended Petition to Determine Invalidity of Administrative Rules. Petitioner challenges Rules 4-211.031(21)(e), 4- 211.031(24) through (27), 4-231.150, and 4-231.160, Florida Administrative Code. The Administrative Complaint charges Petitioner, inter alia, with violating Section 626.611(14), Florida Statutes. That Section provides for the mandatory revocation of licensure and appointment privileges based upon the commission of a crime involving moral turpitude. The statute does not define the term "moral turpitude" or direct the Department to do so. The Department has done so, however, in Rule 4-211.031(21)(e). Petitioner alleges that the Rule is an invalid exercise of delegated legislative authority in that it enlarges and modifies the statute, it exceeds the Department's rulemaking authority, it is vague and fails to establish adequate standards for the Department's decisions, and it vests unbridled discretion in the Department. In conjunction therewith, Rules 4-211.031(24) through (27), Florida Administrative Code, divide crimes into Classes "A" through "D" and contain lists of specific crimes. Those which the Department considers crimes involving moral turpitude based upon the definition contained in Rule 4-211.031(21)(e) are marked with an asterisk. Petitioner alleges these Rules are invalid exercises of delegated legislative authority because the Rule upon which they are based is invalid, because they are arbitrary and capricious as demonstrated by their internal inconsistencies and irreconcilable conflict with court decisions in the State of Florida, and because they enlarge and modify the statute they presumably implement. Petitioner asserts he is substantially affected by Rules 4-211.031(21)(e) and 4-211.031(24) through (27) in that the Administrative Complaint filed against him in DOAH Case No. 99-2593 charges him with entering a plea to aggravated battery, a crime designated by those Rules as involving moral turpitude. Rule 4-211.031(25) includes aggravated battery in its list of crimes involving moral turpitude. Petitioner also contends that two Rules covering the penalty phase of the Department's disciplinary process are invalid. Rule 4-231.150, Florida Administrative Code, provides for mandatory suspension in the event a licensee is found guilty in an administrative proceeding of violating Sections 626.611(14) and/or 626.621(8), Florida Statutes, two statutes Petitioner is alleged to have violated. Rule 4-231.160, Florida Administrative Code, sets forth specific aggravating and mitigating factors to be considered by the Department in assessing the penalty for violating statutes governing the conduct of insurance agents. As to Rule 4-231.150, Florida Administrative Code, Petitioner alleges that it is invalid because it requires mandatory suspension as the penalty for violating Section 626.621(8), Florida Statutes, but the statute provides that suspension is discretionary. Petitioner argues, therefore, that the Rule modifies or limits the statute and is an invalid exercise of delegated legislative authority. As to Rule 4-231.160, Florida Administrative Code, Subsection (1) sets forth 12 factors to be considered in assessing a penalty where Rule 4-231.150 is not involved, and Subsection (2) sets forth 8 factors to be considered in assessing a penalty where Rule 4-231.150 is involved. Both Subsections do, however, provide that any other relevant factors may be considered. Petitioner argues that Rule 4-231.160 is invalid because Subsection (2), which applies when criminal conduct is involved, does not contain the factors in Subsection (1), which contains far-broader factors, and is, therefore, much more limited and unfair. Petitioner further argues that the penalty schemes contained in Rules 4-231.150 and 4-231.160, calling for a mandatory suspension and offering an arbitrary and limited number of aggravating and mitigating circumstances are neither implied nor described by the pertinent statutes. The Rules, therefore, according to Petitioner, are invalid in that they substantially modify or limit the statutes at issue and are also arbitrary and capricious in their application of how disciplinary decisions should be made and what factors are to be considered. Petitioner further argues that Rule 4-231.160 is impermissibly vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the Department by allowing for "other relevant factors" to be considered. The Department's Motion for Summary Final Order argues that Petitioner lacks standing to challenge the Rules and that the Rules are not invalid exercises of delegated legislative authority.
The Issue Whether Petitioner should receive a General Lines Agent license, pursuant to Sections 626.611 or 626.621, Florida Statutes.
Findings Of Fact On April 10, 2003, Petitioner applied for licensure as a General Lines Agent. On May 22, 2003, Respondent denied Petitioner's application for licensure due to his criminal history. On May 30, 2003, Petitioner submitted a timely Election of Rights form, which requested a hearing before the Division of Administrative Hearings. On February 23, 1996, Petitioner was charged with two counts of Depositing Worthless Item with Intent to Defraud in the Circuit Court in and for Orange County, Florida. On July 2, 1996, Petitioner pled nolo contendere to two counts of Depositing Worthless Item with Intent to Defraud. Adjudication of guilt was withheld by the circuit court, and Petitioner was placed on supervised probation for one year and ordered to pay restitution. On March 31, 1997, Petitioner's probation was modified, and then on June 30, 1997, Petitioner's probation was terminated. Petitioner testified as to the circumstances surrounding his plea of nolo contendere to Depositing Worthless Item with Intent to Defraud. He stated that a cousin gave him two post-dated checks to repay a debt and that he deposited them on different days but sought and received permission from his credit union for the immediate release of the funds, in the total amount of $1,435.00. Upon receiving the funds, he used the proceeds to make payments on other accounts. Approximately 30 days later, the credit union informed him that the two checks were returned and marked "account closed" and demanded immediate reimbursement. Petitioner testified that he was only able to make a partial repayment, and, therefore, criminal charges were filed by the state attorney. On the advice of his counsel, he pled nolo contendere to both charges and was placed on probation. While on probation, he repaid approximately 40 percent of the debt and fines. Petitioner believes there is an outstanding balance due of $256.00 plus interest and penalties, for which he is unable to pay because he is presently unemployed. Petitioner testified that he is a trustworthy person and should be granted a waiver from the rules requiring a waiting period, following his conviction, before becoming eligible for licensure. The reason for this request is that he did not intentionally commit these crimes; that he previously worked 20 years successfully in the airline industry which required a background screening for his position; and that he has been studying hard and been offered employment by Liberty Mutual Insurance Group in Orlando, Florida, who did their own background check and approved him for employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a General Lines Agent in this state. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph M. Santino 3201 South Semoran Boulevard Number 39 Orlando, Florida 32822-2678 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The following facts are stipulated by the parties and are incorporated herein: The Respondent has been the clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to this complaint. In July of 1990, the Respondent's wife was issued a citation for having glass bottles on the beach, a violation of municipal ordinance No. 16.30, City of Naples. On August 21, 1990, upon failure to timely pay the fine for the violation of the above-described ordinance or to appear in court on this date, an arrest warrant for Theresa Giles was issued. On August 30, 1990, on or about 4:30 p.m., police officers arrived at the Respondent's residence to arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a telephone call to her husband at the clerk's office. The Respondent went to one of his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers at the Respondent's home and informed them that the bench warrant for Ms. Giles was recalled. Ms. Giles was not taken into custody as a result of Ms. Stoll's action. These facts are derived from the evidence presented, weighed and credited: Respondent, James Giles was the Collier County finance director, performing the pre-audit function for the county, when he was appointed county clerk to finish a two year term in 1986. He was then elected to a four year term ending in January 1993, and was not reelected. His prior employment experience was as a private certified public accountant, an employee of St. Johns County, and an auditor for the State of Florida. On August 30, 1990, when Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and her elderly mother when the deputies came to serve the warrant and arrest her. The ticket, or "Notice to Appear" issued to Ms. Giles for her infraction plainly provides notice that if the fine is not paid or the person fails to appear in court at the appointed time, an arrest warrant shall be issued. (Advocate Exhibit No. 2) James Giles immediately called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation, she went to find the supervisor, Lorraine Stoll. As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up on the computer, Mr. Giles appeared in person. This was a very unusual situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate supervisor. He asked if there was anything that could be done and Ms. Stoll responded that the warrant could be recalled. Before she could explain any further, he handed her a paper with his home phone and asked her to make the call. Ms. Giles answered the phone and put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles was not arrested. Ms. Stoll then told Mr. Giles that the fine and court costs had to be paid. He said the whole thing was ridiculous, that he could not believe a warrant could be issued for such a minor offense. By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2). James Giles admits being upset at the time that the phone call was made, but was trying to calm down because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having bottles on the beach. He denies that he pressured Ms. Stoll, but claims he was trying to be rational and get sound advice. He wanted her to make the call because he felt it would "look bad" if he did. James Giles did not raise his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a pressure situation. Ms. Stoll had never been involved in a circumstance where the warrant was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of the clerk's office for eleven and a half years, as deputy clerk. No ordinary citizen could have received the advantage that the clerk and his wife received. Judge Ellis, a Collier County judge, has a written policy providing that a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis, requires that his office or the State's Attorney be called, and does not have a written policy. Ms. Stoll does not have the authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss told her to, and their main concern was that the warrant needed to be recalled so Ms. Giles would not go to jail. On the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her, nor did she have the opportunity to tell him the proper procedure before making the telephone call. James Giles' explanation that he was simply seeking advice of his staff and then acting on it without wrongful intent is disingenuous. Whatever his actual knowledge of proper procedures for recalling a warrant, he knew or should have known that what he was doing was not an opportunity available to other citizens. His experience in the clerk's office and in prior public service should have clued him that no one else could simply get a deputy clerk to intercept an arrest with a telephone call.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order finding that James Giles violated Section 112.313(6), F.S., and recommending a civil penalty of $250.00. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4942EC The following constitute specific rulings on the findings of fact proposed by the parties: Advocate's Proposed Findings 1. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraph 9. Adopted in substance in paragraph 12. 8.-10. Adopted in substance in paragraph 10. 11. Adopted in substance in paragraph 13. Respondent's Proposed Findings 1. A.-E. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraphs 8 and 12. Rejected as the sequence suggested is contrary to the weight of evidence. Rejected as misleading. The evidence shows the process was incorrect and both staff knew it was incorrect. The clerk was informed about the correct procedure after the phone call. The procedure is set out in paragraph 13. The evidence is not clear that the fine and costs could not have been paid the same day. By the time Mr. Giles finished complaining, it was after 5:00. Rejected as contrary to the greater weight of evidence, considering the totality of Ms. Stoll's testimony as well as Ms. Heck's. Rejected as contrary to the greater weight of evidence. Rejected as immaterial. 3. Rejected as contrary to the greater weight of evidence. More specifically, this proposed finding suggests that the culpability was Ms. Stoll's rather than Respondent's. That suggestion is supported only by Ms. Stoll's timid admissions that she should not have made the phone call without having received the payment from her boss. Ms. Stoll's acceptance of blame does not relieve the Respondent of his responsibility. COPIES FURNISHED: Craig B. Willis Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399-1050 Raymond Bass, Jr., Esquire Bass & Chernoff 849 7th Avenue, South - Suite 200 Naples, Florida 33940-6715 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether the Agency for Persons with Disabilities abused its discretion when denying Petitioner’s request for exemption from being disqualified to work in a position of special trust.
Findings Of Fact Disqualifying Offenses As noted above, the Department of Children and Families, by correspondence dated July 5, 2018, informed Petitioner that his background check revealed two disqualifying offenses. The first offense is described by the Department as “04/25/2014 PINELLAS PARK POLICE DEPARTMENT, LARCENY,” and the second is described as “08/30/2005 ST. PETERSBURG POLICE DEPARTMENT, BATTERY DOM-VIOL.” As an initial matter, the August 2005 offense does not disqualify Petitioner from working in a position of special trust. Specifically, on August 30, 2005, Petitioner was arrested, and charged with misdemeanor battery in violation of section 784.03, Florida Statutes (2005), which is a disqualifying offense. Petitioner’s arrest occurred as a result of a physical altercation with his brother, who was a minor when the alleged offense occurred. According to the case summary sheet (Resp. Ex. 2, p. 99), on April 13, 2006, the charge was reduced to the “lesser included misdemeanor [of] disorderly conduct,” to which Petitioner entered a plea of nolo contendere. On or about May 17, 2006, Petitioner was “adjudicated guilty” of disorderly conduct in violation of section 509.143, Florida Statutes (2005). A violation of section 509.143 is not a disqualifying offense under any of the controlling statutes. On April 25, 2014, Petitioner was arrested and charged with violating section 812.014(2)(c)1., Florida Statutes (2013). This section provides, in part, that “[i]t is grand theft of the third degree and a felony of the third degree … if the property stolen is … [v]alued at $300 or more, but less than $5,000.” On May 28, 2014, Petitioner was found guilty of the offense as charged (adjudication of guilty withheld), and ordered to serve 18 months of probation which included restitution of $75.00 to the victim. According to Petitioner, this offense occurred when he stole cellphones from a Metro PCS store. Non-disqualifying Offenses On August 20, 2018, Petitioner was cited for multiple traffic violations. According to the arrest affidavit, the following events occurred: A stop was initiated on the Defendant’s vehicle for failure to stop at a steady red signal. Upon initiating a stop utilizing emergency lights and sirens, the defendant failed to stop for the emergency vehicle. He continued 3 blocks to the Choice gas station located at 3401 5th Ave., S. Upon making contact, Defendant was identified by FL DL and confirmed via David as being suspended on 8/13/2018 with notice provided on 8/9/2018 for failure to pay a traffic penalty. David also confirmed 4 prior DWLS/R convictions and previously listed as a habitual traffic offender. Petitioner was cited for felony “driving while license suspended or revoked, fleeing and eluding police officer, [and] possession of marijuana.” On October 9, 2018, the State Attorney administratively closed the “marijuana and fleeing” charges, and on October 11, 2018, reduced the felony “driving while license suspended or revoked” charge to a misdemeanor. On November 14, 2018, the Court (Judge Dittmer) accepted Petitioner’s guilty plea, and adjudicated him guilty of the misdemeanor offense of “driving while license suspended or revoked.” See Resp. Ex. 2, p. 253 and 255. While the charges referenced in the previous paragraph were pending, Petitioner, on October 6, 2018, was stopped by the police, and again cited for the felony offense of “driving while license suspended or revoked.” Unlike before, there was no reduction in this charge, and on November 14, 2018, Petitioner entered a plea to the charged offense, and was adjudicated guilty (Judge Quesada) of the third-degree felony of “Driving While License Revoked (Felony-Habitual).” See Resp. Ex. 2, p. 260-265. General Background Information Petitioner is enrolled as a student, and is working towards earning his associate of arts degree. Petitioner has a sporadic work history, and during the last few years has subsisted primarily on student loans. Petitioner testified that he regularly attends church. He is not involved in any community activities, nor has he received any special recognition or awards since his conviction for the disqualifying offense. From approximately October 2016 through June 2020, Petitioner worked at several institutional facilities that offer services to vulnerable adults. During this timeframe, Petitioner was investigated five times for possible mistreatment of vulnerable individuals, with each investigation dismissed as unsubstantiated.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner’s request for exemption. DONE AND ENTERED this 22nd day of April, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2021. COPIES FURNISHED: Clifford Pennywell Apartment B3 5295 59th Circle West Kenneth City, Florida 33709 Trevor S. Suter, Esquire Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Francis Carbone, General Counsel Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Radhika Puri, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399 Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 Barbara Palmer, Director Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
Findings Of Fact Respondent holds a certificate as a law enforcement officer, Certificate Number 02-22949. That certificate is currently inactive. Respondent was employed as a deputy sheriff with the Polk County Sheriff's Department in January of 1978. Respondent resigned this position on or about October 22, 1982. On or about September 9, 1982, Respondent was involved in the apprehension and arrest of an individual named James Pitts. A Winter Haven police officer, Dennis Warren, actually effected the arrest of the above suspect on or about September 9, 1982. During the arrest, Pitts resisted Officer Warren and in so doing, Officer Warren sustained injuries to his right hand. The area in which the struggle occurred consisted of loose dirt and gravel. Immediately after the arrest, Officer Warren's uniform was disheveled, dirty and ripped. The knuckles on his right hand were bleeding. Immediately after the arrest, Respondent's uniform was clean, not disheveled and no dirt was present. The dirt and gravel at the scene of the arrest were the type that would adhere to a uniform. After Officer Warren arrested the suspect, Respondent was unable or unwilling to walk the suspect to the police car. Another officer (Bill Stone), walked the suspect to the police car and placed the suspect in the vehicle. Respondent was present during the arrest of James Pitts and observed Officer Warren struggling with said individual. Officer Warren requested Respondent's assistance in the arrest but Respondent failed to provide such assistance. During Respondent's tenure as a deputy sheriff, he failed to assist other officers on several occasions during violent confrontations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January, 1984.
