The Issue Did Respondent violate Section 491.009(2)(v), Florida Statutes, by failing to maintain in confidence the statements of his patient V.D. made in the course of her treatment with Respondent? Did Respondent violate Section 491.009(2)(s), Florida Statutes, by failing to meet minimum standards of professional conduct as measured against generally prevailing standards of professional conduct where he engaged in numerous social activities with V.D.? Did Respondent violate Section 491.009(2)(k), Florida Statutes, by engaging in sexual misconduct with V.D. as defined by Section 491.0111 and Rule 59P-10.002? Did Respondent violate Section 491.009(2)(q), Florida Statutes, by violating Rule 59P-9001(4) when he destroyed V.D.'s patient records less than seven years after his last contact with V.D.?
Findings Of Fact Respondent is and at all times material hereto was a licensed marital and family therapist, license number MT0001290. Respondent had a professional relationship with T.G. who is V.D.'s son. Respondent's professional relationship with T.G. began in the late 1980's and continued until 1994. Respondent had a professional relationship with V.D. as her personal therapist during the late 1980's while he was also treating her son. Respondent had a professional relationship with V.D. and her husband as their marriage counselor from 1988 through 1989. In May, 1993, V.D. expressed a desire to have a sexual relationship with Respondent. After becoming aware of V.D.'s sexual interest in him, Respondent participated in a numerous social activities with V.D., to include seeing her alone for extended periods of time. These occasions were: In May of 1993, when Respondent accompanied V.D. to an area of Mayport, where they parked for approximately two hours. On Friday of Memorial Day weekend, 1993, when V.D. arrived uninvited at the home of Respondent's parents where Respondent was residing. The Respondent invited V.D. into the home at approximately 7:00 p.m., and allowed V.D. to remain in the home until 2:00 a.m., Saturday. On Saturday morning of Memorial Day weekend, 1993, when V.D. returned uninvited to the home of Respondent's parents at 7:00 a.m., Respondent invited her in. He made coffee, which they drank on the back porch. In June of 1993, when Respondent allowed V.D. to drive him to the empty house of Respondent's friend B.J. The drive was approximately 20-25 miles. Id. They spent 1 1/2 to 2 hours alone together on this trip. In June of 1993, when Respondent met V.D. at the empty house of a different friend of Respondent located on Dunn Avenue. The purpose of this meeting was to review V.D.'s patient records. On at least one occasion, Respondent, having obtained a ride to V.D.'s residence for the purpose of an in-home appointment with V.D.'s son, allowed V.D. to drive him to his then estranged wife's home after the appointment. Respondent acknowledges a therapist's duty to establish clear lines between professional and social relationships. Respondent admitted to "blurring" that line in his relationship with V.D. Respondent admitted that he should not have done many of the activities described above in paragraph seven. Respondent admitted that his behavior created the appearance of impropriety. While V.D. was at the Dunn Avenue home, she reported she observed boxes stored in a manner that made them accessible to anyone entering the home. She did not examine the boxes. The Respondent stated the boxes that V.D. observed were not patient records, but other materials he was storing. He kept records in a locked footlocker. V.D. asked Respondent to destroy her records and those of her son. Respondent admits to destroying V.D.'s patient records and those of her son prior to the end of the statutorily required holding period. Respondent has worked at the Florida State Prison as a "psychological specialist, forensics/corrections" since November 5, 1993. At Florida State Prison, Respondent worked with P.Y., who was a clerk typist for all of the psychologists at the prison. P.Y. and the Respondent car-pooled to work for a time. During the period when Respondent and P.Y. worked together, P.Y. spoke to Respondent regarding her marital difficulties. This was not a professional relationship. Respondent engaged in a very brief sexual relationship with P.Y. This occurred after he learned about her marital difficulties. During her employment at Florida State Prison, P.Y. asked Respondent about V.D., who P.Y. knew casually because both women knew and were friends with Lillian Everetts, who was their hairdresser. P.Y. was privy to information about V.D. and her son which she had acquired from Ms. Everetts. P.Y. commented to Respondent that V.D. appeared very thin and might be anorexic. The Respondent, who had never treated V.D. for an eating disorder, but who had given her the name of a specialist in such matters, advised Mr. Yoe that V.D. had some eating disorders. In a conversation in their office, the Respondent revealed to P.Y. that V.D. had once inquired about hypnotic therapy to determine if she had been molested as a child. V.D. testified that she had engaged in sexual intercourse with Respondent during May and June of 1993. V.D. contemporaneously reported this liaison to Lillian Everetts. The Respondent denies that such a relationship occurred, but admits to seeing V.D. at some of the times and places at which V.D. claims they had sexual liaisons. See paragraph 7 above. The testimony of V.D. is more credible, and the Respondent engaged in a sexual relationship with V.D. in May and June of 1993. Having a sexual relationship, with a former client/patient is a violation of professional standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and the factors in mitigation, it is RECOMMENDED: That the Respondent be placed upon probation; be required to attend courses in professional responsibilities; be restricted from unsupervised practice; and be required to practice with professionals who are advised of these findings and Respondent's violation of these statutes, and who will agree to monitor and supervise Respondent's work. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire 1407 Piedmont Drive East Tallahassee, Florida 32312 Elizabeth Renee Alsobrook, Esquire Alsobrook and Dove, P. A. 2074 Thomasville Road Tallahassee, Florida 32302 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Florida State Hospital, is an "employer" as statutorily defined at Section 760.02(7), Florida Statutes (2007).
Findings Of Fact Behavioral Health Solutions LLC is a private business entity (BHS). The Petitioner was employed by BHS as a clerk- typist beginning on October 6, 2006, and until February 6, 2007, when she was terminated. BHS and the Department of Children and Family Services/Florida State Hospital entered into a contract on September 16, 2006, whereby BHS was to be responsible for providing staff for various positions for the provision of services to residents of Florida State Hospital. One of those positions was that occupied by the Petitioner, at times pertinent to this proceeding. The contract provided that BHS would be responsible for hiring, transferring, promoting, discipline, and discharge/termination of BHS staff. BHS was also responsible for providing its staff with salaries, benefits, compensation packages and training. BHS has its own organizational structure which was not integrated into that of the Respondent Florida State Hospital's organizational structure. The Respondent Florida State Hospital was charged with supervising BHS's staff and with recommendations where required, for disciplinary action or removal from the work site. BHS had the final authority to reassign, discipline or terminate BHS staff, however, by the terms of the contract. The Petitioner was hired by BHS as of October 6, 2006. The offer of employment which she accepted came from BHS. The Petitioner was told later that she was terminated in February 2007 by Angie Burge, the BHS Human Resources Manager. The Petitioner's date of employment were October 6, 2006, through February 6, 2007. The testimony of Angie Burge and Amy Bryant establishes that BHS employees such as the Petitioner, were trained by BHS. Ms. Bryant established through her testimony, as the Operations and Management Consultant for the Department of Children and Families (Department) that neither the Department nor Florida State Hospital had controlling responsibility over employee relations matters regarding BHS's staff/employees, such as the Petitioner. Although she and Florida State Hospital worked in conjunction with Ms. Burge and BHS on employee training requirements, BHS employees, including the Petitioner, were trained by BHS and its staff. BHS and the Respondent Florida State Hospital had a contract for BHS to provide staff for the forensic unit at Florida State Hospital, where the Petitioner was employed by BHS and the contract included the requirement that BHS operate that unit. At orientation, BHS provided its employees or new hires, including the Petitioner, all polices and procedures of BHS and trained them as to such policies and procedures. Ms. Burge, a BHS staff member, provided that training. BHS had authority to hire employees or to terminate them or discipline them and to make final decisions on the performance of the duties of the staff it hired, including the Petitioner. Florida State Hospital and the Department did not have final authority on such matters but could only recommend to BHS. The salary and benefits plan of BHS was very different from that of Florida State Hospital. It was based upon the parent company's pay and benefits scheme, the parent company being Lakeview Center, Inc. The administrators of Florida State Hospital did not have any decision-making authority in employee regulation, discipline, hiring, and termination decisions. Ms. Burge, the BHS Human Resources Manager, made the decision and informed the Petitioner of her termination. The Petitioner has not presented persuasive evidence that Florida State Hospital had sufficient control over the terms and conditions of the Petitioner's employment, or the employment of other BHS staff members, so that such staff members, including the Petitioner, could be deemed employees of the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety due to lack of jurisdiction. DONE AND ENTERED this 5th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 5th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Corrine Hamilton 440 South Cone Street Quincy, Florida 32351 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000
The Issue The issue is whether Respondent's Correctional Certificate No. 164605 should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), seeks to discipline Correctional Certificate No. 164605 held by Respondent, Eric T. Jenkins, on the grounds that in December 1998 he was in possession of more than 20 grams of cannabis, a controlled substance, and he illegally carried contraband (cannibis) onto the grounds of Florida State Prison (FSP) while employed at FSP as a correctional officer. In his request for a hearing, Respondent denied the allegations. Periodically, and without notice, the Department of Corrections (DOC) sends a small contraband interdiction team (team) to various state correctional institutions for the purpose of intercepting contraband that may be covertly brought into the facility by DOC employees or inmate visitors. The team consists of a small number of specially trained DOC employees, including K9 units, and a volunteer Florida Highway Patrol trooper, who assists the team in making arrests. On Sunday, December 20, 1998, a team targeted FSP and arrived on the premises around 5:00 a.m. The inspection lasted until shortly after the last shift of employees reported to work around 4:00 p.m. Besides patting down employees and visitors, the team also searched the vehicles of employees that were parked in the employees' parking lot inside the prison. Respondent worked the last shift that day and arrived shortly before 4:00 p.m. He was driving an Isuzu Amigo with Florida vehicle tag "WSM 82B." To assist the team in its search, the team used several specially trained dogs (Blue, Smokey, and Thor) who were assigned the task of sniffing parked vehicles for narcotic odors. When a dog recognizes a narcotic odor, it "alerts" or responds to the odor and remains passively in front of the vehicle. After Blue "alerted" at the rear of Respondent's vehicle, a second dog, Thor, was brought to the vehicle and he also responded in the same manner. Respondent was then notified that the team wished to search his vehicle, and he executed a written Consent to Search form ageeing to a search. A search conducted by a DOC officer discovered a latex glove hidden under the front passenger seat of Respondent's vehicle. Inside the glove were two compressed baggies containing approximately 55 grams of a substance that appeared to be cannibis. Laboratory testing by a state chemist confirmed that the substance was indeed cannabis, and that it weighed 51.5 grams. Although the street value of the drugs was only around $275.00, in a prison environment, the drugs had a far greater value. Respondent initially agreed to be interviewed by a Florida Highway Patrol trooper at the prison regarding the contraband. He subsequently had a change of heart and declined to answer any questions. Respondent was then arrested for "drug offenses," booked into the Bradford County Jail, and charged with violating Sections 893.13 and 944.47(1)(a)4., Florida Statutes (1997). However, the disposition of the criminal matter is unknown. In any event, after being arrested, Respondent was immediately terminated from his position at FSP. In mitigation, Respondent has been certified as a correctional officer since June 26, 1996, and there is no evidence that prior disciplinary action has been taken against him. In aggravation, Respondent used his official authority to facilitate his misconduct; he was employed as a correctional guard when the misconduct occurred; Respondent has made no efforts of rehabilitation; Respondent stood to receive pecuniary gain by selling the contraband in the prison; and there are two established counts of violations of the statute requiring that correctional officers maintain good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order determining that Respondent has failed to maintain good moral character, as charged in the Administrative Complaint, and that his Correctional Certificate No. 164605 be revoked. DONE AND ENTERED this 29th of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 29th day of June, 2000. COPIES FURNISHED: A. Leon Lowrey, Jr., Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Eric T. Jenkins 1000 Bert Road Jacksonville, Florida 32211
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 21, 1988, as a law enforcement officer, Certification Number 50-87-002-01, and at all time relevant, certification was active. In March of 1988, the Respondent became employed as a police officer with the Winter Haven Police Department. On two separate occasions in 1990, Lois May engaged in sexual intercourse with Officer Edgar S. Searcy. On both occasions, Officer Searcy paid May $10.00 for her services. Officer Searcy was on duty and in uniform during both of these occurrences. Colleen McCoy performed oral sex on Officer Searcy in exchange for $5.00 on one occasion in 1990. While on duty, Respondent picked up McCoy at her residence, and took her to a secluded location where she performed oral sex on him. He paid her $5.00, and drove her to a location where she could walk to nearby "crack house" and obtain drugs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989), and that Respondent's certification be REVOKED. DONE AND ENTERED this 6th day of January, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 6th day of January, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,9 Rejected as hearsay: paragraphs 6,7,8 Respondent's proposed findings of fact. Accepted in substance: none Rejected as argument or comments on the evidence: paragraphs 1, 2, 3,4 COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Steve Brady Regional Legal Advisor Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Doris Hundley Qualified Representative Edgar S. Searcy 490 East Plum Avenue Chipley, Florida 32428
The Issue Petitioner protests the method by which Respondent Department of Transportation (DOT) advertised RFP-DOT-99/00-3002 and RFP-DOT-99/00-3003 and the specifications contained in the RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B, and 14.0-C.
Findings Of Fact The subject Requests for Proposal (RFPs) are RFP-DOT- 99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the 2000 RFPs. These RFPs seek suppliers of security guards for rest areas and welcome centers maintained by DOT in its District III. That District currently is administered by "east" and "west" segments of Interstate Highway 10, with "east" corresponding to RFP 3003 and "west" corresponding to RFP 3002. NYCO is a supplier of security guard services for industrial, health care, general, and retail establishments in Florida, Alabama, and Mississippi. Ken Chandler is Administrator and Operational Manager for NYCO. Since 1994, NYCO has bid on DOT RFPs for the same project and has provided security guard services for District III. Generally speaking, security guards are non-skilled persons who work at or near minimum wage. Higher standards for its security guards imposed by prior DOT contracts requiring law enforcement training and certification have resulted in NYCO paying off-duty law enforcement officers at a considerably higher rate of pay to work at DOT's facilities. The 2000 RFPs constitute "contractual services contracts" governed by Chapter 287, Florida Statutes. They also are "standard scope of services contracts," which means they are developed on a statewide basis with District input. NYCO's first contract with DOT was awarded July 1, 1994, for two years. The second was awarded July 1, 1996, for two years. For the first contract, specifications were mailed to Mr. Chandler three months in advance of the bid submittal date. For the second contract, NYCO, as the incumbent contract holder, was notified that specifications were ready for pick-up. NYCO had to submit a written request for the RFP package. The 1999 RFP was advertised on the Florida Communities Network (FCN) and, according to Richard Norris, DOT District III Contract Administrator, RFP packages also were sent to all proposers for the prior contract because he had promised to do so when that set of bids had all been rejected. Apparently, no such promise was made for the 2000 RFPs. (TR-103). FCN is a website maintained by the Florida Department of Management Services for the purpose of advertising public contracts. During the course of NYCO's most recent contract, NYCO employee Joe Huff regularly checked with DOT personnel to ensure that the security which NYCO was already providing was going along well. Both Mr. Chandler and Mr. Huff assumed NYCO would be alerted during these conversations as to when it could request the specifications for the next round of contracts, the 2000 RFPs. DOT employee Lloyd Tharpe submitted technical aspects of the 2000 RFPs to Richard Norris on or about December 23, 1999. Mr. Huff testified that he made contact with DOT personnel, including Mark Thomas, Tom Williams, Charlie Ward, Rufus Baron, and Milton Blake, on February 7, February 14, February 15, February 21, and February 29, 2000. While Mr. Huff maintained that on nearly every occasion he asked if the DOT employee to whom he was speaking knew when the new RFP specifications would be ready, his testimony on the precise contents of these conversations is a little vague. He based his recollection on notes in his day planner which merely listed the name of a city, and he then assumed that he spoke with whomever he usually contacted in that city. He could not recall the exact content of these conversations. None of the foregoing DOT employees corroborated that they had been asked about the 2000 RFP specifications by Mr. Huff. It was not established that any of Mr. Huff's contacts were with DOT's procurement office, which Mr. Huff knew advertises the RFPs. DOT District Maintenance Engineer Mark Thomas stated that he only became aware on or about February 29, 2000, that the 2000 RFP was being advertised. Mr. Huff was told on February 29, 2000, by Mark Thomas that the 2000 RFPs were "on the street" and that the mandatory pre-bid conference would be held March 2, 2000. NYCO attended the mandatory pre-bid conference for the 2000 RFPs on March 2, 2000. On March 3, 2000, NYCO timely filed its Notice of Intent to Protest the specifications of the 2000 RFPs. The deadline for submitting proposals in response to the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal timely, but found it difficult to prepare in such a short time frame. On March 13, 2000, NYCO timely filed its Formal Written Protest of certain specifications of the 2000 RFPs. The specifications challenged in this case were developed by the Department's State Maintenance Office. They read as follows: 1.7.2 Qualifications of Key Personnel Those individuals (as identified in Section 12 of Exhibit "A" Scope of Services) who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Contract Manager. Where State of Florida registration, certification, or license is deemed appropriate, as identified in Exhibit "A" Scope of Services, a copy of the registration, certificate, or license shall be included in the proposal package. 2.0-A Services to be Provided by Contractor A. Provide uniformed, armed Security Officers licensed pursuant to F.S. 493, to provide security services. 14.0 Eligibility Criteria All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the following requirements. Training Requirements: Must be a graduate of a certified United States federal, state, county, or local law enforcement agency training program, a correctional officer training program, a military police training program, or an equivalent training program, which presented the individual with the appropriate certificate or diploma stating eligibility for employment as a Law Enforcement or Correctional Officer. Law Enforcement Officer and Correctional Officer shall be defined in Sections 943.10(1) and (2), Florida Statutes. The Contractor is encouraged to seek services of security guards licensed pursuant to Chapter 493, F.S., who are former members of the armed forces of the United States and have been affected by military downsizing or base closures, and shall be further encouraged to contact community colleges or other educational institutions which provide training for security guards for candidates meeting these qualifications. Licensing Requirements: Contract Supervisors and Security Officers, while on duty, must possess upon their person and present to Department personnel upon request the following: State of Florida Class "D" License (security guard license). State of Florida Class "G" License (license authorizing individual to bear a firearm). State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. No Security Officer will be permitted to work under this contract using an Acknowledgement Card from the Department of State. A Security Officer or Contract Supervisor employed as a Law Enforcement Officer or Correctional Officer must have documentation showing proof of current employment and approval from his/her employing agency or department to carry a firearm during off-duty hours in his/her capacity as Security Officer and Contract Supervisor. The manner of advertising the 2000 RFPs also was challenged. For the 2000 RFPs, DOT did not advertise in newspapers or the Florida Administrative Law Weekly and did not mail specifications to incumbent contractors or to a list of potential bidders. DOT only advertised the 2000 RFPs via FCN from approximately February 1, 2000 to March 6, 2000. According to Richard Norris, the Department is required by statute to advertise projects on FCN. He cited neither statute nor rule to support his conclusion. He stated that there are many other or additional ways DOT may advertise a project and that advertisement by FCN is only the minimum requirement. He was not aware of any current statutory or rule requirement that DOT directly notify potential bidders for this type of RFP. However, he stated that if he were approached directly by a potential bidder, he would tell that potential bidder about the RFP over the phone. To develop scope of services contracts such as the 2000 RFPs, Alan Reese, the Department's State Contracts and Agreements Manager, directs the gathering of information from the Department's Districts or other sources, develops a draft, receives input from each District as to the draft, and the draft is reviewed throughout the Department, including its legal office, until finally the State Maintenance Engineer signs-off on it. In this instance, the bid specifications were intended to create a uniform and consistent statewide system that was understandable to the bidders. Lloyd Tharpe and his staff were responsible for mailing out the RFP packages as they were requested by potential bidders after the first advertisement approximately February 1, 2000. No active intent or effort by DOT staff to obscure NYCO's opportunity to bid was proven. The 2000 RFPs require that to be a security guard of DOT facilities, one must be qualified to be hired as a law enforcement officer or correctional officer as defined in Subsections 943.10(1) and (2), Florida Statutes. (RFP Section 14.0-A). The training qualifications to be hired as a law enforcement officer under Chapter 943 are higher than those imposed by a Class "D" security guard license from the Department of State pursuant to Chapter 493, Florida Statutes. The 2000 RFP specifications also require that to be a security guard of DOT facilities one must have a Class "D" or Class "G" (if a gun is carried) license from the Department of State, pursuant to Chapter 493, Florida Statutes (RFP Section 4.0-B.1 and 2). DOT interprets the foregoing RFP requirements to mean that even currently employed Florida law enforcement officers and correctional officers must also be licensed by the Florida Department of State as Class "D" or Class "G" security officers. DOT is aware of an exemption in Chapter 493, Florida Statutes, permitting law enforcement officers to act as security guards without obtaining a Class "D" license from the Department. As far as the 2000 RFPs are concerned, the exemption may not be exercised. A 1996 DOT Inspector General's internal audit report identified individuals with questionable backgrounds working for security firms which had already contracted with DOT. The report concluded that the background checks that the then- existing contracts required the contract security firms to perform had been unsatisfactory. The report recommended that the security firms do more extensive background checks on their employees. DOT did not want anybody guarding tourists, especially women and children tourists, who had not gone through a thorough background check. DOT apparently felt it could not rely on the security firms to do background checks on their employee-guards. DOT determined that it did not have authority or ability to do its own background checks, so it decided to rely on the Department of State, which did have authority and ability to do background checks. Mark Thomas understood that once an application for a Class "D" or "G" license has been received by the Secretary of State, an FDLE criminal background check is conducted by the Florida Department of Law Enforcement (FDLE), and an acknowledgment card is sent by the Department of State to the applicant which states that the applicant may perform security guard services while carrying the card. However, Mr. Thomas ultimately admitted that he did not know anything at all about Department of State background checks. His "understanding" was not corroborated by Ms. Constance Crawford. Constance Crawford is the Bureau Chief for the Bureau of Licensing, Department of State. She handles the administrative responsibilities associated with the review of security guard applications pursuant to Chapter 493, and Sections 790.06 and 849.094, Florida Statutes. According to her, the Department of State will issue Class "D" and Class "G" security guard licenses to law enforcement officers. Ms. Crawford provided no information about the Department of State's security guard background checks. In developing the 2000 RFPs, DOT decided not to accept Department of State acknowledgement cards because DOT staff believed that acknowledgment cards were issued by the Department of State to applicants before a national background check (also called an NCIC check) was completed through the Federal Bureau of Investigation (FBI). No DOT witness had knowledge of how Department of State, FDLE, or FBI background checks are performed. Mr. Chandler testified that NYCO's problem with the RFPs' requirement for law enforcement officers to have Class "D" and/or Class "G" licenses before they are employed at DOT's interstate facilities was due to the time it takes to get Class "D" and "G" licenses issued by the Department of State, which can be anywhere from a few weeks to several months, and because it is very difficult for NYCO to retain potential employees for that long before they are placed on the jobsite. He testified that NYCO would have no problem if the employees could be certified in three days. Mr. Chandler testified that the letters of authorization required by DOT in specification 14.0-C differed from the language employed in Chapter 493, Florida Statutes, and that many law enforcement agencies had refused to sign the form letter provided by DOT because those law enforcement agencies interpreted the letters to make the law enforcement agencies liable for anything done by the law enforcement officer, on or off-duty. DOT's approved form letter reads: Dear Sirs: is an employee of this Department and has the approval of this Department to carry a fire arm during off- duty hours in his/her capacity as a Security Officer and/or Contract Supervisor at the Florida Department of Transportation Rest Areas/Welcome Centers within the Third District. Sincerely, Name Title
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation which rejects all bids and provides that the specifications be redrafted in accordance with the foregoing Findings of Fact and Conclusions of Law. DONE AND ENTERED this 22nd day of August, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 22nd day of August, 2000.
The Issue This order concerns the Respondent's motion to dismiss this action with prejudice premised upon lack of jurisdiction of this forum specifically, it is alleged that the Petitioner does not have standing to bring an action under Section 120.57, Florida Statutes, in view of the fact that he is not considered to be a party within the meaning of Subsection 120.52(10)(d) Florida Statutes. The Respondent also asserts that the Petitioner has no legally recognizable substantial interest to be determined in this action, as would be required to establish standing to proceed under Section 120.57, Florida Statutes.
Findings Of Fact On April 17, 1980, the Petitioner, David W. Cochran, was convicted and sentenced for the offense of lewd assault on a child, a violation of Section 800.04, Florida Statutes. This conviction and sentence was entered by the Circuit Court, Criminal Division, Polk County, Florida, in Case No. CF79-1761. The Petitioner was given a ten year sentence in the State prison for that offense, with the recommendation that the Petitioner be treated as a mentally disordered sex offender. In keeping with the terms and conditions of Section 917.012, Florida Statutes (1979), the Petitioner was evaluated by the State of Florida, Department of Corrections and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at the Florida State Hospital, Chattahoochee, Florida, by process of transfer from his confinement in the prison to the stated placement as an offender. At the time of the motion hearing in this cause, the Petitioner was residing at Florida State Hospital, Chattahoochee, Florida, in the sex offender program, awaiting transport by the State of Florida, Department of Corrections, back to an appropriate corrections facility, it having been determined by the State of Florida, Department of Health and Rehabilitative Services that it had exhausted all appropriate treatment for the said offender. The motion to dismiss had been occasioned in face of a petition for administrative determination which had been filed by the Petitioner with the Respondent and referred by the Respondent to the Division of Administrative Hearings for disposition. That petition calls for a determination on the question of exhaustion of treatment of the Petitioner in the aforementioned sex offender program and as stated in the Issues provision of this Recommended Order, the Respondent took the position that the hearing which the Petitioner requested pursuant to Subsection 120.57(1), Florida Statutes, could not be granted to the Petitioner for the reasons set forth in the issues statement.
