The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the administrative complaint, Respondent has been certified by the Commission as a law enforcement officer, certificate No. 02- 34512. In April, 1987, Respondent was employed by the Florida Highway Patrol (FHP) in Dade County, Florida. On the morning of April 9, 1987, at approximately 7:00 a.m., while dressed in his FHP uniform, Respondent went to the home of his girl friend, Connie Hawkins. Unable to waken Ms. Hawkins by knocking at the door, Respondent went around to her bedroom, began to bang on the glass, and attempted to pry open the window. As a result, the window broke and Ms. Hawkins was awakened by the noise. Respondent then demanded that Ms. Hawkins open the door since he had cut his left arm on the broken window. When Ms. Hawkins opened the door, Respondent began to strike her about the face and arm. Apparently, Respondent was angry that Ms. Hawkins had not opened the door earlier and felt she had caused the injury to his arm. This injury, a two inch cut on the left arm, was bleeding rather badly. Respondent went to Ms. Hawkins' bathroom and wrapped a hand towel around the wound in order to apply pressure and stop the bleeding. Subsequently, Respondent left the Hawkins' home in his FHP vehicle. After she was sure Respondent was gone, Ms. Hawkins telephoned the Metro-Dade police to report the incident. She did not want to have the Respondent criminally prosecuted, but she did want to take measures to assure he would not attack her again. After giving a statement to the police, Ms. Hawkins went to an area hospital for examination and treatment of her swollen face and bruised arm. She was required to wear a sling on the injured arm for a couple of days. The Metro-Dade police notified the FHP that one of its employees, Respondent, had been named in connection with a domestic disturbance. The report of the incident was given to Lt. Miller, the FHP supervisor on duty the morning of April 9, 1987. Coincidentally, that same morning at approximately 7:30 am., Lt. Miller had observed a cut on Respondent's left arm and had ordered him to a hospital for stitches. According to the story Respondent gave Lt. Miller, the injury had been caused by the FHP car door when Respondent was entering it after a routine highway stop. A sharp piece of the window framing had allegedly snagged Respondent's arm causing the cut. According to the Respondent, the piece of metal framing may have fallen off the car since the area was later found to be smooth.- Following treatment for the cut, Respondent signed a Notice of Injury form which is required by the Division of Workers' Compensation for all work- related injuries. This form alleged the injury had been sustained as described in paragraph 8. Subsequently, an investigation conducted by the FHP raised questions regarding the incident with Ms. Hawkins and the "work-related" cut on Respondent's arm. Lt. Baker attempted to interview Respondent regarding this investigation. Respondent declined to be interviewed and resigned from the FHP. Later, Respondent obtained a job as a security officer with the Dade County School District. Prior to his resignation from the FHP, Respondent did not claim he had cut or injured both arms on the morning of April 9, 1987. Lt. Miller did not observe a cut on Respondent's right arm on April 9, 1987. Neither Lt. Miller nor Trooper Allen, a trained traffic homicide investigator, could discover any trace evidence on Respondent's FHP vehicle to substantiate Respondent's claim regarding the cut. There were no breaks in the metal or paint along Respondent's door in the area he identified as the point of injury. There were no rough or jagged edges. The Notice of Injury signed by Respondent contained information which was false or misleading.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice standards and Training Commission enter a final order revoking the certification for a law enforcement officer held by Respondent. DONE and RECOMMENDED this 19th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of January, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1-38 are accepted. Paragraph 39 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Paragraph 40 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Respondent's testimony and that of Mr. Black relating to the alleged wound to the right arm was not credible. Paragraph 41 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. Paragraph 42 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-5 are accepted. With regard to paragraph 6, to the extent that it relates Respondent's testimony it is correct, however, the fact it not. That is, it is found that Respondent injured his left arm at the Hawkins' home; consequently, Paragraph 6 is rejected as contrary to the weight of the credible evidence. Respondent's account was not credible. Paragraph 7 is accepted to the extent that it relates the story given by Respondent; such story being deemed incredible and therefore, rejected as contrary to the weight of credible evidence. Paragraph 8 is accepted to the extent that it relates the testimony of the troopers; however, the conclusion reached is speculative and unsupported by the record in this cause. Paragraph 9 is rejected as contrary to the weight of credible evidence. Paragraph 10 is accepted; however the facts related in that form were false or misleading. Paragraph 11 is rejected as argument, or unsupported by the credible evidence in this cause. Paragraph 12 is rejected as argument, or unsupported by the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Denis Dean, Esquire Dean & Hartman, P.A. 10680 N. W. 25 Street Suite 200 Miami, Florida 33172 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
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 issues for consideration are those presented by an Administrative Complaint brought by the Commissioner of Education against Respondent. In that complaint, Respondent is accused of violating Section 231.28(1), Florida Statutes, by obtaining his extended Teacher's Certificate by fraudulent means. A similar allegation is made related to Rule 6B-1.06(5)(a)(g) and (h), Florida Administrative Code. A second category of allegation pertains to a violation of Section 231.28(1), Florida Statutes, based upon the fact that Respondent has been guilty of a misdemeanor, and has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the Duval County School Board.
Findings Of Fact James Robert Stephens has held a Teacher's Certificate since 1972 issued by the State of Florida. The certificate was renewed in July 1977 and a further extension was granted on August 2, 1982. This is a regular certificate issued in the fields of social studies and elementary education: In applying for the August 2, 1982, extension of the certificate, Respondent answered in the negative when asked the question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violation?" That answer was not true and the Respondent recognized that he was answering the question in an untruthful way at the time of giving his response. In fact, as he knew, the Respondent had been arrested on July 26, 1971 and charged with DWI and fined $100 for that offense. Again, on January 12, 1978, he was charged with the offense of DWI and pled no contest to that offense on July 23, 1978, for which he received a $200 fine. Respondent's explanation in the course of the hearing that he did not answer this question in the affirmative because he felt that the certifying agency with the State of Florida had been told of those offenses by local authorities in Duval County is not accepted. On May 22, 1983, the Respondent was in a drinking establishment in Jacksonville, Florida. After having consumed alcoholic beverages, he was involved in an altercation with another person in the bar, causing the management of the establishment to seek the assistance of law enforcement. When the police officer arrived at the scene, the Respondent was uncooperative and verbally abusive, in the sense of using profanity. As a consequence, the Respondent was arrested for disorderly intoxication, an offense for which he pled no contest and was fined $100. As established by testimony of the arresting officer, Michael S. Berry and Dalton Epting, Duval County School District Administrator, the conduct by the Respondent in the bar is not in keeping with the conduct expected of a teacher in Duval County. In particular, Epting as an educator, established that this kind of conduct sets a poor example for children whom the education profession is responsible for.
Findings Of Fact The parties to this proceeding stipulated to the existence of three cases presently pending before the Division of Administrative Hearings in which the Department of Transportation seeks to enforce the challenged rules against Petitioner. As such, the Department of Transportation has conceded that Petitioner herein is "substantially affected" so as to clothe it with standing to maintain this rule challenge proceeding. On January 27, 1972, the Governor of the State of Florida entered into an agreement with the United States of America, represented by the United States Department of Transportation and the Federal Highway Administration. That agreement contained certain restrictions on outdoor advertising signs near controlled interchanges, and is now commonly referred to as the "Interchange Rule." That rule is now contained in Rule 14-10.09(2), Florida Administrative Code.' The agreement contained in Rule 14-10.09(2), Florida Administrative Code, was ratified by the Florida Senate in Concurrent Resolution No. 657.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1 by retaliating against Petitioner because he engaged in protected activity.
Findings Of Fact The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Department in 1978 as an Examiner I in Bartow and has continuously worked for the Department since his hiring. He held various positions within the Department through the years, including Supervisor I and Assistant Regional Administrator. In 1998, Petitioner held the position of Hearing Officer in the Bureau of Administrative Review. In February 1998, Petitioner suffered a heart attack and underwent open heart surgery for the placement of two stents to repair the blockage to his arteries. On April 7, 1998, Petitioner submitted to Tommy Edwards, assistant director of the Division of Driver Licenses, a letter requesting a voluntary demotion from Hearing Officer to a word processing position, in order to reduce the stress and pressure of his employment. Petitioner's request was granted. Later in 1998, Petitioner's health improved and he began applying for promotions, but was consistently passed over. He learned that for one Examiner I position, he had been the top candidate, but was not selected because of the letter he had written to Mr. Edwards and because Mr. Edwards had expressed concerns about placing Petitioner in a high stress position. Petitioner wrote a second letter to Mr. Edwards, dated February 9, 1999, to clarify that his physician had given him a clean bill of health, with no restrictions as to the type of job he was able to handle. This situation led to Petitioner's filing a complaint against the Department in 2000, in the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Case No. GC-G-00-0141, based on 42 U.S.C. §§ 12111 et seq., the Americans with Disabilities Act, and Chapter 760, Florida Statutes, the Florida Civil Rights Act. On July 8, 2003, the parties entered into a Settlement Agreement and Release resolving this litigation. As a condition of the settlement, Petitioner agreed to release all claims against the Department connected with his complaint. The Amended Employment Charge of Discrimination, filed on October 26, 2004, with the FCHR, alleges that the Department has denied Petitioner promotions and transfers in retaliation for his previous complaint. At the final hearing, testimonial and documentary evidence was elicited as to Petitioner's applications for six positions within the Department. The selection processes for four of the positions, 903481, 2333, 902315, and 2986, occurred after the Settlement Agreement and Release was signed and less than 365 days before the Amended Employment Charge of Discrimination was filed. The Selection processes for two of the positions, 5350 and 5234, occurred after the Settlement Agreement and Release was signed, but more than 365 days before the Amended Employment Charge of Discrimination was filed. Evidence concerning the latter two positions was admitted for the limited purpose of demonstrating a pattern of discrimination by the Department. The Department's selection process for an open position commences with advertising the opening. Applications are received, and a Department employee conducts an initial screening of the applications to determine which candidates meet the minimum qualifications for the position in question. Those applications passing the initial screening are then subjected to a detailed screening in which they are scored according to work experience and the knowledge, skills and abilities pertinent to the position, as well the state-mandated veterans' preference. The Department personnel in charge of filling the position set a cutoff score to ensure an adequate pool of interviewees, then a panel conducts interviews of the selected applicants. These interviews are scored, and the highest scoring candidate is generally offered the position. The Department does allow the second highest scoring candidate to be selected, if his or her score was within 10 points (on a 100-point scale) of the highest ranked applicant. The applicant interviews are not free-form, but are conducted according to a process dictated by the Department. For the positions in question, the Department provides the interview panel with a list of five questions. Each candidate is given the list of questions and has fifteen minutes to read them and prepare a response. The interview panel then meets with the candidate, asks each question and listens to the answers. The interviewers then score the responses according to an answer key provided by the Department, which contains several "correct" answers to each question. A candidate may receive full or partial credit for his responses, depending on how many of the correct answers he provides. The candidates may also be given written exercises that are graded and scored by the interview panel. Each candidate for a given position is provided the same set of questions and written exercises. The entire selection process, from initial screening of all applicants to final interview scores and selection of the successful applicant, is recorded on a spreadsheet document called the Applicant Selection Guide ("ASG"). Department policy provides that an existing ASG may be used to fill a subsequent comparable position, provided the second position is filled within six months of the process that generated the ASG, and the candidate who fills the second position is the highest ranked candidate remaining on the ASG, or is within 10 points of that candidate. The first position Petitioner applied for was position 5350, a compliance examiner position in Pinellas County for the Division of Motor Vehicles. The application deadline was June 4, 2003. Out of 162 applicants, five were selected for interviews, including Petitioner. At the conclusion of the interview process,3 the highest scoring candidate was Gary Konopka. Petitioner and Allen Shaffer tied for second. The position was offered to Mr. Konopka, who declined it for personal reasons. The position was then offered to Mr. Shaffer, who accepted it.4 Richard Roth was the regional administrator for the Division of Motor Vehicles at the time position 5350 was filled. He retired in August 2003, shortly Mr. Shaffer was hired. Mr. Roth testified that he made the decision to hire Mr. Shaffer, but had no present recollection of how he decided to break the tie between Petitioner and Mr. Shaffer. Mr. Roth had no knowledge of Petitioner's complaint of discrimination, or of his lawsuit against the Department. Assistant Bureau Chief Edwin Robcke, Bureau Chief Charles Gowan, and Margaret Lamar, the senior consultant in the office of employee relations, who investigates discrimination charges within the Department, all testified that they were unaware of any Department-established procedure for breaking tie scores between applicants. Petitioner next applied for position 5234, an operations analyst5 position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was October 31, 2003. Deborah Todd, the program manager who would be the direct supervisor of the employee hired to fill position 5234, performed the detailed screening of the applications. Out of 113 applicants, five were selected to be interviewed, including Petitioner. Ms. Todd conducted the interviews along with Eileen Bishop, an operations analyst in the bureau of administrative reviews. Stephen Walter was the top scoring candidate, but a recent disciplinary action in his current job rendered him ineligible for the promotion that position 5234 would have offered. Ms. Todd made the decision to offer the position to Deborah Leto, who had the second highest score. Ms. Leto accepted the position. Petitioner finished fifth out of the five candidates interviewed,6 and was notified by letter dated January 2, 2004, that he had not been selected for the position. At the hearing, Ms. Todd testified that Petitioner's interview was "fair," in the sense of "not bad." His answers to the oral questions were too short, but he did receive the maximum points possible for his written work exercise. Ms. Bishop likewise testified that Petitioner did "fair" on his interview. Ms. Todd testified that she had not met Petitioner before the interview and had no knowledge of his prior lawsuit against the Department. Petitioner next applied for position 902315, a compliance examiner position in Orange County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was March 4, 2004. The ASG for position 902315 indicates that the interview process was conducted by Department employees Donn Lund and Marie Smith of the Winter Park office. Neither Mr. Lund nor Ms. Smith was called to testify in this proceeding. The ASG indicates that approximately 125 people submitted applications and that 11 applicants were interviewed. Petitioner had the highest screening score of any candidate. However, it appears that once again Petitioner's interview was less than impressive. The successful applicant, Esteban Capo, received a score of 90 out of a possible 100 points. Petitioner received a score of 37 points, placing him in a tie for last place among the candidates interviewed. At the hearing, Petitioner's recollection of his interview for position 902315 was lacking in detail. He simply testified that he recalled nothing untoward occurring during the interview that would account for his low score. Petitioner next applied for position 2333, a compliance officer position in Hillsborough County for the Division of Motor Vehicles' Bureau of Field Operations. The application deadline was June 16, 2004. Out of 190 applicants, five were selected for interviews, including Petitioner. In the detailed screening, Petitioner scored 83 points, which tied him for the high score with Lina Botero. Ms. Botero had the high score for the interview process, scoring 82.08 points, was offered position 2333, and accepted the position. Thomas Thayer had the second highest score, with 74.96 points. In August 2004, the ASG for position 2333 was used by region administrator Gary Konopka to fill the opening for position 5350 created by the promotion of Allen Shaffer to a field supervisor position. Position 5350 was offered to Mr. Thayer, who accepted the position. In the interview process for position 2333, Petitioner scored 60.84 points, finishing fourth out of the five applicants interviewed. The interviewers for position 2333 were Mr. Konopka, field supervisor Clyde Schmitz, and Kelly Cook, who no longer works for the Department and did not testify in this proceeding. Mr. Schmitz testified that he had no recollection of Petitioner's interview for the position. Mr. Konopka recalled that Petitioner's answers to the interview questions were "very curt, very brief, almost as if he were going through the motions." In contrast, Ms. Botero was extremely animated and very talkative. Mr. Konopka pointed out that the scoring criteria award points for multiple responses from a candidate, and, thus, Ms. Botero was better served by speaking more. As Mr. Konopka put it, "the more you talk, the better off you are because you may stumble into the answer." Mr. Konopka recalled that Mr. Thayer was a little nervous, but, like Ms. Botero, he gave several answers during the oral questions. Mr. Konopka characterized Mr. Thayer's written submissions as "superb." Mr. Konopka testified that he knew nothing of Petitioner's complaint against the Department at the time of the interviews for position 2333 and that none of the members of the interview panel discussed Petitioner's complaint. Petitioner next applied for position 2986, a senior highway safety specialist position in Orange County7 for the Division of Motor Vehicles. The application deadline was June 29, 2004. Out of 31 applicants, five were selected to be interviewed. Petitioner was not selected for an interview. Dennis Valente, chief investigator of the Division of Driver Licenses, conducted the screening for position 2986. Mr. Valente testified that, after an initial screening to make sure the candidates met the bare minimum qualifications for the job, he then conducted a detailed screening to ascertain the candidates' education, experience, and special knowledge, skills and abilities. After the detailed screening was completed, Mr. Valente set a cut-off score to ensure that five to seven candidates were interviewed. Mr. Valente did not know Petitioner and was not aware that Petitioner had filed a complaint against the Department.8 For position 2986, the cut-off score was established as 88 out of a possible 100 points and five candidates were interviewed. Petitioner's score on the detailed screening was 72 points. Mr. Valente recalled that Petitioner received maximum scores for four out of five of the "experience" factors on the detailed screening, but that he received no points for education. Petitioner is a high school graduate and points were available only for post-secondary education.9 The successful applicant for position 2986, Clark Brookstone, had a master's degree in mass communication, in addition to his bachelor's and associate of arts degrees. Petitioner next applied for position 903481, an operations and management consultant position in Hillsborough County for the Division of Driver Licenses' Bureau of Administrative Reviews. The application deadline was July 6, 2004. Out of 66 applicants, seven were selected for interviews. Petitioner was not selected for an interview. Danny Watford, chief of the Bureau of Administrative Reviews, performed the screening, then conducted the interviews for position 903481 with Deborah Todd. Mr. Watford testified that he performed no initial screening, and that every candidate received a detailed screening. At the time of the screening, Mr. Watford did not know that Petitioner had filed a complaint of discrimination. Mr. Watford set the cut-off for obtaining an interview at 40 points. Petitioner received 24 points on his detailed screening. Mr. Watford testified that Petitioner was minimally qualified for the job, but that the job opportunity announcement stated a preference for a candidate with a bachelor's degree. The successful candidate, Gordon Brown, had a bachelor of science degree from California State University at Fullerton. As noted above, Petitioner is a high school graduate. At the final hearing, Petitioner listed eight other positions for which he applied and was not offered the job. These positions were not applied for or filled within the time frame pertinent to this proceeding. Petitioner conceded that there was no direct evidence of discriminatory or retaliatory intent on the part of the Department employees who conducted these employment screenings and interviews. In fact, those Department employees who were familiar with Petitioner spoke highly of his work. Charles Gowan, Bureau Chief of Field Operations, testified that Petitioner has done a good job as an employee in his bureau.10 On August 8, 2003, Mr. Gowan awarded Petitioner with a letter of commendation for Petitioner's work as temporary office manager for the Lakeland driver license office. Patricia Connery, a senior highway safety specialist with the Department, testified that Petitioner had done a good job as her supervisor in 1994. Ms. Connery also testified that she obtained her current position through a telephone interview, without going through a formal application and interview process. Petitioner contends that this incident, coupled with the unexplained method used to break the tie between Petitioner and Mr. Shaffer for position 5350, and the alleged subjectivity of the interview process, demonstrates that the Department's selection process is a sham designed to allow the Department's administrators to hire whom they please without regard to the candidates' merits. In this instance, Petitioner alleges, the sham process was employed to retaliate against him for having brought a discrimination complaint and lawsuit against the Department. The evidence established that there were minor variations among the Department's offices as to the precise methodology employed in the hiring process. However, the evidence also established that the process was internally consistent, i.e., any local variations in the process were uniformly applied to all applicants for a given position. Ms. Connery's internal promotion by means of a telephone interview was an aberration and was unrelated to any position for which Petitioner was a candidate. Petitioner contends that someone in the Department's central office in Tallahassee was the real decision maker for these positions, and in each case insured that Petitioner was not the successful applicant. The evidence did not support this contention. In each instance, the hiring decision was made by the senior employee on the interview committee at the district level. While it is true that those decisions were submitted to Tallahassee for ratification, in no instance was the district-level decision overturned. Petitioner did not establish that any of the interview panel members or candidate screeners was aware of his discrimination complaint or lawsuit at the time their respective decisions were made. Mr. Gowan was aware of Petitioner's lawsuit at the time of the interviews for position 2986, but Petitioner was not interviewed for that position. The greater weight of the evidence establishes that, while Petitioner was at least minimally qualified for the positions in question, Petitioner's lack of a college degree and his indifferent interview skills were the chief reasons for his failure to obtain any of the positions for which he was interviewed. The greater weight of the evidence establishes that the Department personnel conducting detailed screening of applicants considered only Petitioner's application and accompanying materials submitted by Petitioner in determining whether, or not Petitioner should be interviewed. Petitioner's applications were treated no differently than the applications of other candidates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Highway Safety and Motor Vehicles did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of October, 2006.
Findings Of Fact William B. Barker, Jr., is certified as a law enforcement officer in the State of Florida employed by the Walton County Sheriff's Department and stationed at DeFuniak Springs, Florida. On or about 20 June 1981, Diana Marie Preston was driving her automobile west on Interstate Highway 10, in Walton County, Florida, on her way to her grandparents' home in Gulf Breeze, Florida. She had just completed the Law School Admissions Test in Tallahassee that morning and was on her way back home. Due to heavy rain in the area, she was driving carefully and was not exceeding the speed limit. At approximately 3 to 4 p.m., she was hailed by a police officer in a county police car. When she pulled over to the roadside at his request, the officer advised her she had been speeding and requested to see her driver's license. Since her license was in her purse which was in the trunk of her car, she had to get out of her car and open the trunk, at which time the officer noticed a pair of high-heeled shoes she had in there and asked her to take them out, indicating he had been looking at a pair like that for his wife. When Ms. Preston got her license out, the officer requested that she accompany him to his car, get in on the passenger side and close the passenger door. She complied, though she did not close the door completely. During this period, she noticed that though the officer was in uniform, he was not wearing either a name tag or a badge with a number on it. She does not recall whether he was wearing a pistol, but states there was a rifle in the vehicle on which he placed his hand several times while talking to her. The officer took Ms. Preston's driver's license and reached across her to the glove compartment for his ticket book, but at no time did he use his radio to call in either her driver's license number or her car tag number. Before writing out the ticket, the officer indicated he would not issue a ticket to her if she would put on her high heels (she had been driving barefoot) and let him try to guess her shoe size. He stated that for every size he was off in his guess, he would kiss her foot a certain number of times. Ms. Preston repeatedly refused, but because the officer was insistent and she felt she was in a difficult position due to the fact that she was alone on a lightly travelled (at the time) section of highway, she ultimately acquiesced. Though the officer had ample opportunity to see the shoe size when he examined the shoes, he guessed wrong on the size by several sizes. At this time, her left foot was in his lap, and he picked it up and kissed it several times. When he was finished, in the course of conversation, the officer asked her what she had been doing in Tallahassee. She told him she had been taking the LSAT, and his attitude changed immediately. He told her to go on with her trip, but cautioned her not to tell anyone what had happened, as he could get into trouble. Upon being released by the officer, Ms. Preston proceeded on to Gulf Breeze to the home of her grandparents, whom she told about the incident the following day. She did not report the incident to the police nor discuss it until several weeks later when she was contacted by two investigators who showed her a large photograph of individuals who, it was represented to her, were members of the Walton County Sheriff's Department. From this group, she identified the Respondent, Barker, and subsequently again identified him at the hearing as the officer in question, describing him as a heavyset man with a mustache and wearing tinted glasses. Respondent, upon graduation from high school, attended O. W. Junior College and then went on to the University of West Florida where he received his bachelor's degree in criminal justice. He unequivocally denies the allegations against him, stating he had never seen Ms. Preston until the day of the hearing at the hearing room. In fact, his shift was over, and he signed out just prior to 3 p.m. on 20 June 1981. In his opinion and that of his mother, the allegations against him are attributable to his stated position in a political dispute during which he sided against the incumbent sheriff for whom he was working. There is no evidence bearing on this issue other than the testimony of the Respondent and his mother.
Recommendation From the foregoing, it is concluded that the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent is guilty of the allegations contained in this Administrative Complaint. It is RECOMMENDED: That the Criminal Justice Standards and Training Commission issue a final order dismissing the Administrative Complaint. ENTERED this 24th day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.
Findings Of Fact Respondent was first licensed by Petitioner as a commercial driving instructor in November, 1981, until November, 1982. Until that license was summarily suspended on April 8, 1982, Respondent was employed by Fajardo Driving School. On January 8, 1982, at approximately 6:00 A.M., Respondent approached the waiting line at the Central Driver's License Office with two Cuban applicants for drivers' licenses. A number of Haitian applicants were at the beginning of the line. Respondent attempted to place his two students in front of the Haitians. When the Haitians refused to allow Respondent and his students to enter the line in front of them, Respondent and his two students went to some nearby trash cans, obtained bottles, and began fighting with and striking the Haitians who had refused to give up their place in line to Respondent and his students. After the altercation, Respondent got in his car and left the area. He subsequently returned to the Central Driver's License Office, where he was arrested and charged with aggravated battery with a bottle. As a result of the bottle throwing engaged in by Respondent and his two students, two of the Haitians who were attacked received head injuries requiring hospital treatment. On other occasions, Respondent has placed his students at the head of the line without resorting to violence in order to obtain such preferred treatment for his students. On March 23, 1982, at the Central Driver's License Office, Respondent had a disagreement with Enelio Rodriguez, another driving instructor for Fajardo Driving School, over a ten-dollar charge for a rental car. When Rodriguez refused to pay Respondent the ten dollars Respondent was demanding, Respondent struck Rodriguez in the eye. On March 23, 1982, Miguel Orlando Uria, a driving instructor and owner of Uria Driving School, requested Amado Perera, a driving instructor for Autosa Driving School, to move Perera's car from the starting position, so Uria could place his student in the starting position for the driving test at the Central Driver's License Office, since Uria's student was due to be tested earlier in time than any of Perera's students. Although neither Respondent's car nor Respondent's student was the subject matter of the discussion between Uria and Perera, Respondent interposed himself into the argument and became "nasty." Respondent did not strike anyone on this occasion; however, Department personnel were present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Ernesto E. Luque. RECOMMENDED this 30th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 30th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue Whether or not the Division of Beverage was justified in denying Kenneth Oliver, trading as Capri Art Theatre, a beverage license under his application for a beverage license, based upon the fact that Kenneth Oliver was not deemed to be of good moral character, good moral character being a requirement for the issuance of a license as stated in Florida Statutes, 561.15.
Findings Of Fact Traditionally, in application cases the burden of going forth with proof rests with the Petitioner, Applicant. However, in the instant case the parties stipulated to allow the Respondent to offer its case first, in view of the fact that the Petitioner was not represented by an attorney. The Respondent introduced exhibit number 1 which was a notice of hearing. This exhibit was not objected to by the Petitioner and although the notice of hearing did not grant the statutory requirement of 14 days notice, the Petitioner waived any objections to the 14 day notice, because the Petitioner indicated that he was anxious to proceed to hearing immediately. The Respondent introduced a second exhibit, without objection by the Petitioner, and this exhibit was the letter of denial of application for license. Finally, in the way of proof the Respondent moved to admit a certain document known as a rap sheet, which the Respondent indicated was the basis for denying the license because of lack of good moral character on the part of the Petitioner. This exhibit was shown to the Petitioner in the course of the hearing and a recess was granted for the Petitioner and Respondent to discuss, out of the presence of the hearing officer, the accuracy of those entries found on the rap sheet. Upon return from the recess the present exhibit number 3 which was admitted, was tendered to the hearing officer as being the corrected record of arrests and convictions for criminal offenses and quasi criminal offenses as committed by the Petitioner, Kenneth Oliver. The only exception taken by the Petitioner to this account of his prior convictions was as related in exhibit number 3, the line pertaining to arrests and convictions for an offense in DeLand, Florida, for possession of nervous system stimulant for which the Petitioner is alleged to have paid a $250 fine based upon a guilty plea. The Petitioner indicated that he did not recall this particular incident. There was no further showing on the part of the Respondent as to the accuracy of this alleged plea of guilty to the offense of possession of nervous system stimulant which supposedly occurred in DeLand, Florida. The Petitioner, Kenneth Oliver, took the stand in his behalf and indicated that he felt that he should be entitled to the issuance of a beverage license for the purposes as applied for. His reasons for this suggestion were that he was a businessman and that he wanted to make money and that he could make money by selling beer. Additionally, he said that his last arrest for any criminal offense was in 1973, and that his past record should not stand in the way that much. Furthermore, the Petitioner testified in his behalf that he was of good moral character.
Recommendation It is therefore recommended that the Petitioner's application for a beverage license be denied. ENTERED this 7th day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Kenneth Oliver 715 North Ridgewood Avenue Daytona Beach, Florida 32014 William A. Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304
