The Issue Whether Petitioner is entitled to an exemption from employment disqualification upon clear and convincing evidence of good moral character.
Findings Of Fact On May 6, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 22, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 29, 1983, Petitioner was arrested for a probation violation. On July 15, 1983, Petitioner was arrested for obtaining property in return for a worthless check. On June 28, 1985, Petitioner was arrested for fraud--insufficient funds check. On May 14, 1990, Petitioner was arrested for fraud--insufficient funds check. Arrests have no significance for statutory disqualification purposes. On September 6, 1983, Petitioner pled guilty to three counts of passing worthless checks. Adjudication of guilt was withheld. He was ordered to pay $150.00 in court costs. (Case #83-1051-CF-A). On August 2, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a worthless check. Adjudication of guilt and imposition of sentence were withheld. Petitioner was ordered to pay court costs in the amount of $147.50. (Case #83-395-CF). On May 25, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a worthless check. He was sentenced to 30 days of county probation and ordered to pay $35.00 in court costs. (Case #83-569). Petitioner entered a plea of guilty to the charge of obtaining property in return for a worthless check (a third degree felony), on June 28, 1985. Petitioner was adjudicated guilty, and sentenced to two years' imprisonment (Department of Corrections), to be followed by one year of probation. He was also ordered to pay restitution in the amount of $102.93. None of the foregoing pleas or convictions were, or are, statutorily disqualifying offenses, but at hearing Petitioner offered the incredible explanation for them that his checkbook had been stolen by drug-affected relatives who actually wrote the worthless checks. He offered no explanation why he had pled guilty to crime(s) he claimed not to have committed. In the juvenile justice system, the Alachua Regional Juvenile Detention Center (ARJDC) is the equivalent of a county jail in the adult system. Juveniles charged with delinquent acts or crimes or for whom there is sufficient probable cause to warrant their arrest and detention are housed there for a minimum of 21 days, during which time they receive a preliminary hearing and/or commitment hearing. Petitioner claimed to have been employed in this facility from October 1985 to October 1997. How it could be possible for Petitioner to have been employed at ARJDC in October 1985, when he had been sentenced in June 1985, to two years' imprisonment was never explained, but his testimony to this effect was not refuted. Also, DJJ stipulated that ARJDC had employed Petitioner from October 1985 to October 1997, and there was evidence from several witnesses that Petitioner had worked at ARJDC while the facility was administered by DJJ, after 1995. In October 1985, ARJDC was administered by the Department of Health and Rehabilitative Services (HRS), which was/is a social service agency. Sometime before October 1997, when Petitioner resigned, ARJDC began to be administered by DJJ. DJJ is a criminal justice agency created in 1994. DJJ views its mission as "reducing juvenile crime." Neither HRS nor DJJ is a law enforcement agency or a correctional agency. While employed at ARJDC, Petitioner was, in sequential order, an OPS Transporter, OPS Detention Care Worker, and a full-time, career service Detention Care Worker I. On July 12, 1995, while he was employed in career service by DJJ at ARJDC, Petitioner was arrested for "domestic battery." The circumstances of the domestic battery of July 12, 1995, are fairly classic. The woman Petitioner was then living with, LeTeju Lane, had placed several phone calls to Petitioner at his workplace. When he returned from transporting juveniles, Petitioner only got word that LeTeju had called and left no specific messages. He got permission to go home early. Petitioner found a strange car in the driveway of the home he shared with LeTeju and then listened at the back door. Having heard sounds of "sexual commotion" inside, Petitioner went to the front door, kicked it in, and observed a man having sex with LeTeju. A fight ensued between the two men when Petitioner asked the man to "get off" LeTeju. This record is silent as to any harm done by Petitioner to either LeTeju or the male interloper. On September 11, 1995, Petitioner pled nolo contendere to the offense of "domestic battery," no statute specified. Based on the statutory scheme and the documentary evidence, it appears that Petitioner pled to a first degree misdemeanor.1/ Adjudication of guilt was withheld, and Petitioner was placed on non-reporting probation for one year. Court costs were waived, but on October 16, 1995, Petitioner was ordered to pay $100.00 in restitution to LaTeju. This money was for the repair of the door Petitioner had kicked in and damaged during the domestic battery incident. Petitioner testified that he reported the circumstances of the domestic battery to his immediate DJJ supervisors even before he was released from the initial arrest and that he kept them advised of the progress of his case; that ultimately they told him that if he were not convicted of a felony, he could keep working for DJJ; and that they allowed him to keep working in his position of special trust at ARJDC until he voluntarily resigned two years later. Mr. Turner, DJJ's current IG, has been with DJJ since 1994 but only became IG sometime in 1996. He testified that in 1995, Petitioner's immediate supervisors had a duty to report the domestic battery offense to the IG's office for investigation re disqualification exemption, and they did not. Mr. Turner inferred from this information that Petitioner actually never told his superiors about the domestic battery. Petitioner continued to work for DJJ at ARJDC until October 1997, when he voluntarily resigned due to orthopedic problems with his knee. Three professional care witnesses who had worked with Petitioner at ARJDC testified. All three described Petitioner as caring, responsible, honest, effective, and the type of person who worked well with juveniles. A supervisor noted that Petitioner was truthful about his paperwork; had willingly worked overtime; and, on occasion, had voluntarily worked without pay when OPS funds ran out. None of these witnesses knew about Petitioner's criminal record. Petitioner married LaTeju Lane about three months after the domestic violence event in 1995. Thus far, it has been a successful marriage, producing two children. On November 16, 1998, the Circuit Court in and for Alachua County granted Petitioner full custody of two of his children from a prior marriage. Petitioner and LeTeju have successfully integrated these children into their household. LaTeju's child by a prior mate also resides with them. Observers describe Petitioner as a concerned and loving father and describe all the children as "well-mannered." Petitioner has three other children by his first wife. Petitioner supports all of his minor children. LaTeju described Petitioner's behavior toward her ever since their marriage as "lovely." She further described him as being nonviolent, self-controlled, and good with the children. Petitioner described himself currently as a self- controlled, civic-minded, hard-working church-going professional. Petitioner is currently employed as a lieutenant- supervisor of security guards for the Barkley Security Agency, working at Gainesville Regional Utilities. Prior to that, Petitioner worked in mortuary science at a funeral home. On February 24, 2000, Petitioner received a certificate of recognition from the Alachua County School Board for preventing a middle school student from getting on a school bus armed with a snub-nosed pistol. On other occasions, Petitioner has been publicly commended for reporting four escaped juveniles to the Putnam County Sheriff's Department and for summoning authorities to intercept a three-year-old child who had wandered onto the green spaces of I-75. On November 6, 2000, Petitioner completed the course for certification as a Class D security officer with a score of 97 out of a possible 100 points. For approximately three years, Petitioner has been qualified as a "documented source" by the Florida Department of Law Enforcement. This means that his criminal background has been checked for anything that might discourage law enforcement officials from using him for intelligence work. Even so, law enforcement agencies frequently employ minor criminals, paid informants, and potential co-defendants for the same or similar services as Petitioner performs for them. According to Kenneth Moore, Special Agent of the Florida Department of Law Enforcement; Carnell Grayer, retired Lieutenant of the Palatka Police Department; Clovis Watson, Assistant Chief of Police of Alachua, Florida; and Robert Jernigan, Chief of Police of Alachua, Florida, Petitioner has a history spanning approximately ten years of intermittent paid civilian "intelligence work" for various police departments and sheriffs' offices. In each instance, he has done whatever was asked of him in a timely manner, and all the information he has provided has checked out as true. He regularly provides information which results in arrests and clears cases. Each officer testified favorably about Petitioner's intelligence, truthfulness, and reliability. Each testified that Petitioner was "professional" and able to control his emotions and remain non-violent under stress, even when his own children were at risk. Most of the law enforcement witnesses were unaware of Petitioner's criminal record. Some were aware of it. When made aware of his criminal record, most law enforcement witnesses felt that neither Petitioner's worthless check history nor the domestic violence offense would affect their high opinion of Petitioner, but that a false statement under oath probably would prevent their trusting him. In 1999, Petitioner submitted job applications for caretaker positions with Eckerd Youth Alternatives and Marion Regional Juvenile Detention Center, and submitted an Affidavit of Good Moral Character. Both potential employers submitted background screening requests on Petitioner to DJJ's BSU. Petitioner claimed that he had told the DJJ employees who had accepted his 1999 employment applications and affidavit all about his past criminal record and offered to provide further information, and that they had told him to turn in the applications and affidavit described below and wait to see what BSU said. Without corroboration, this assertion does not excuse Petitioner from making the disclosures required by the written instructions on the affidavit and applications. The State of Florida employment application which Petitioner signed on September 17, 1999, and submitted to Marion Regional Juvenile Detention Center (R-12), indicated that Petitioner had been a "state correctional officer" with DJJ from 1985 to 1997. This representation of being a "correctional officer" is a technical impossibility, since neither DJJ nor its predecessor agency HRS operated/operates correctional facilities. (See Finding of Fact 9) Petitioner admitted under cross-examination that he had been a Detention Care Worker I when he resigned from DJJ in 1997. He explained his answer on the 1999 job application as being the result of information he had received from his former DJJ superiors while he was still working for DJJ. Petitioner also stated on the September 17, 1999, application that he had been a "Communication Officer I" with the Clay County Sheriff's Office from September 1983 to April 1984. He did, in fact, hold that position, which constituted being a dispatcher. On the job application, Petitioner also checked "yes" to the question, "Are you a current or former law enforcement officer, other employee or spouse or child of one who is exempt from public records disclosure under Section 119.07 (3)(k), Florida Statutes?" The application form explains "other employee" to include, among others, correctional officers. It does not list police dispatchers. It then refers the applicant to the named statute for further explanation. Petitioner testified that he knew that to be a "law enforcement officer," one had to be a "certified police officer," which he had never been. Petitioner testified that he had checked the "yes" for exemption from public records requests on his application because when he was a law enforcement dispatcher and when he worked for DJJ, his superiors had told him this was a way to keep the criminal element from locating his home to hurt him or his family. A section of the September 17, 1999, job application required that Petitioner reveal convictions, nolo contendere or guilty pleas, and adjudications withheld of any felonies or first degree misdemeanors. Petitioner only admitted to "worthless check in Clay County, on July 14, 1983." This date did not match any of his worthless check pleas, convictions, or adjudications withheld and gave DJJ the impression that Petitioner was admitting to only one worthless check charge. Petitioner also did not disclose his plea of nolo contendere or that adjudication had been withheld on the 1995 domestic battery charge, a first degree misdemeanor. The job application, which Petitioner signed, authorized a search of his background and clearly stated that he was aware that any omissions might disqualify him from consideration for the employment position applied-for. In conjunction with his applications for employment and his background screening packages, Petitioner completed and signed an Affidavit of Good Moral Character, dated and notarized on September 20, 1999 (R-3), in which he swore that his criminal record did not contain any disqualifying offenses. That affidavit did not require him to list his worthless bank check charges or convictions as disqualifying offenses, but it did specifically list as a disqualifying offense, "741--relating to domestic violence as defined in Sections 741.28 and 741.30 (any crime of violence against a family/household member, including assault and battery)." Petitioner's explanations of his failure to disclose the domestic battery on the affidavit were that he believed the inquiries thereon only applied to his good character after 1995; he did not read the affidavit carefully; and he assumed the affidavit was the same as the one he had signed 14 years previously. None of these explanations is worthy of belief, especially since he ultimately admitted that the old affidavit and the 1999 one did not look the same. Petitioner's assertion that he did not think he was required to disclose the domestic battery at all because he believed that it would not count against him since his former DJJ superiors had allowed him to work for two years after it occurred is not corroborated, but is credible within the confines described in the following Conclusions of Law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption. DONE AND ENTERED this 1st day of February, 2001, 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 1st day of February, 2001.
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
Findings Of Fact As described in Respondent's exhibit 3, on May 18, 1987 Petitioner made application with Respondent for licensure. In response to question 13 about the number of arrests he had had, he noted that in 1947 that he had been arrested for the offense of "None (sic) tax liquor" and the outcome was said to be "six months". This is perceived as reference to the fact that the violation related to a liquor law in which Petitioner says he was given a six month sentence. A Federal Bureau of Investigation offense report, part of Respondent's exhibit 5, speaks to an arrest on February 3, 1949 related to violation of an Internal Revenue regulation of liquor laws and shows a jail commitment upon default of a $500.00 bond. The application also stated that the Petitioner had been arrested several times for fighting, but the cases had been dismissed. Petitioner was licensed by Respondent based upon the 1987 application previously referred to. Subsequent to his licensure he was arrested on November 8, 1987 for battery, in particular spouse abuse. This was an alleged violation of Section 784.03, Florida Statutes. The Florida Department Law Enforcement offense report, part of the Respondent's composite exhibit 3, shows the disposition of the offense by an adjudication of guilt. Petitioner through his testimony identified that he had pled nolo contendere to this offense. As a consequence of this incident he lost his license through revocation proceedings. On May 8, 1989 Petitioner reapplied for licensure. A copy of his application may be found as part of Respondent's composite exhibit 2. In this instance in response to question 13 he indicates that he was arrested in 1958 for making moonshine whiskey and served five months and 29 days. Again this is perceived as an acknowledgment of the offense of February 3, 1949 previously described. In answer to question 13 he also referred to the 1987 offense related to his wife as "spousal abuse" and stated that he had stayed overnight in jail. The Florida Department of Law Enforcement offense report which is part of Respondent's exhibit 3 refers to "2D credit", taken to mean two days credit for the time he had served. In the 1989 application Petitioner sought the assistance of counsel in offering a supplemental answer to question 13 which gives a more complete explanation of the non-tax whiskey case and the 1987 battery. In the course of this explanation by counsel he states that adjudication of guilt was withheld on the plea of nolo contendere for the 1987 offense. Citation is made to the case of Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). In addition a disclaimer is given about other offenses in 1971 for larceny; in 1985 for carrying a concealed weapon; in 1983 for loitering and the belief that these items must pertain to someone other than the present Thomas Felton. Given the close proximity in time of the 1989 application to the loss of the license issued in 1987 through revocation, Petitioner withdrew his request for licensure. In the 1989 application the information that had been placed on the application form had been put there by Petitioner's wife. On February 7, 1990 Petitioner submitted his present application for classes "D" and "G" licenses. On this occasion the form application was filled out by his employer in the person of a Ms. Ross. Petitioner doesn't know what Ms. Ross used as an information base for filling out the 1990 application. She was aware of the fact that he had spent the night in jail in 1987. This is related to the incident with his wife in which he was arrested for battery. In the 1990 application, Respondent's exhibit 1, in answer to question 13 Petitioner says that in April 1948 that he had been arrested for moonshine selling and was given six months. Again this is seen as a comment on the February 3, 1949 incident related to the liquor laws. In the 1990 application he also mentions that he had been arrested several times for fighting and that the cases had been dismissed. He makes no reference to the 1987 incident of battery against his wife. Petitioner describes his omission of the 1987 arrest as that of someone who is careless as opposed to someone attempting to hide the facts. He accurately points out that the Respondent had a record of the 1987 battery offense against his wife. Having considered his explanation in the context of other facts presented, Petitioner is not found to have intended to misrepresent information concerning the 1987 battery offense against his wife when submitting the 1990 application. On March 13, 1990 as shown in the joint exhibit 1, Petitioner rejected the request for licensure. It gave as reasons the existence of the battery charge of November 8, 1987 in that the failure to disclose information about that charge was seen as a fraudulent or willful misrepresentation in applying for the license, in violation of Section 493.319(1)(a), Florida Statutes. Further, the existence of that offense was seen as the conviction of a crime directly related to the business being sought for licensure, in a circumstance where a plea of nolo contendere had been entered, in violation of Section 493.319(1)(c), Florida Statutes. This matter was seen as being in violation of Section 493.319(1)(j), Florida Statutes in that Petitioner was alleged to have committed a battery or use of force or violence against his wife. There is the overall reference within this explanation of denial which allows the agency in certain instances to deny a license for violation of any provision within Chapter 493, Florida Statutes. In particular that reference is Section 493.319(1)(p), Florida Statutes. For all these statutory reasons the application was denied. On March 27, 1990 Petitioner filed a formal petition requesting a hearing. This request was submitted to the Division of Administrative Hearings for consideration. The final hearing ensued. According to Petitioner the incident of spousal abuse occurred as follows: On the night he was arrested he was awakened by his wife who said that their children were fighting and one of those children had a knife. He used a metal walking stick to stop the daughter with the knife and hit his wife on the left forearm which became swollen after that blow. At the time he hit her she was behind him. He was then taken to jail and spent the night. He pled no contest without benefit of consultation with counsel. The judge told him he could go home. At the time he entered his plea he told the judge that he had hit his wife accidentally. Petitioner didn't indicate that he was trying to restrain the wife at the time he struck her. He stated that he was unacquainted with what the wife may have told the police about the incident. When cross-examined Petitioner said that he could not recall if he had been arrested for striking his wife before this incident, but that he didn't think so. He was then confronted with information concerning a 1969 incident of striking his wife and upon being reminded of that circumstance admitted that he had been fighting with his wife in that year. He also acknowledged that he could have been fighting with her in 1967. The wife in 1969 was the same wife as in 1987. The 1969 incident with his wife was felt by the Petitioner to have been another occasion of problems related to his children. As part of Respondent's composite exhibit 5, the Federal Bureau of Investigation offense report, there are items related to "DC" taken to mean disorderly conduct. The disposition of the disorderly conduct case in 1967 is shown as being discharged from municipal court. The 1969 incident of disorderly conduct is one disposed by a fine of $20.00 in municipal court. Both the incident in 1967 and the incident in 1969 occurred in Jacksonville, Florida, as did the 1987 incident with his wife. In her testimony Petitioner's wife says that she was hit on her right hand in the 1987 incident. She testified that the children called the police and that a lady officer took Petitioner to jail. She indicates in the testimony that the Petitioner and his wife were not fighting. She acknowledges that she was hit with a walking cane. She says she told the police that she was hit on her hand by her husband. She said she doesn't know whether she was hit intentionally. She does acknowledge that there was a scuffle of some sort. She states that in the past that she has called the police and that her husband was arrested when they have fought. In 1969 both she and her husband were arrested for that incident, according to the wife. She has no specific recollection about the incident in 1967. On the night that her husband was arrested in 1987 she did not attempt to stop the police from making the arrest. According to Mrs. Felton, at a later time Petitioner told her that he didn't intend to hit her. She says that six or seven kids were involved in the incident from ages 16 to 25. She states that she forgave her husband for the incident on the next day following the November 8, 1987 fracas. Kathy Evans offered testimony. She is an officer with the Jacksonville Sheriff's Department in Jacksonville, Florida. She responded to the incident on November 8, 1987 and arrested the Petitioner. By report that was given to her at the scene after she arrived, gathered from unidentified sources at the scene, she was led to believe that the Petitioner and his wife had had an argument about the children. This lack of identification of the reporters is associated with the officer's inability to recall at hearing who had made the report. By report, Petitioner sided with one of the daughters and the wife favored the other daughter's position. Petitioner got angry with his wife and hit her. In sequence, there had been a verbal argument between the daughters and the parents became involved and the wife was struck. As the officer recalls the nature of the injury, it was to the right arm of the wife and left a black and blue welt. The wife didn't object when the husband was arrested for spouse abuse. The officer observed four people at the scene of the event, two of these people being the Petitioner and his wife and the others the children. Having considered the testimony of the three witnesses who appeared at hearing, the officers account of what she observed after the incident and recount of what she was told at the scene is credited. The explanations by the Petitioner and his wife are not credited. This decision is reached in consideration of the demeanor of those witnesses, their motives for truth and veracity and the fact that they were not forthcoming in the explanation of the incident. Nor has the Petitioner been convincing in any suggestion that the circumstance of his plea of nolo contendere to the offense of battery related to the 1987 incident was under circumstances less than proper. Petitioner through his proof has failed to overcome the presumption created by the nolo contendere plea to the offense. Under the circumstances Petitioner has not shown sufficient rehabilitation to allow licensure following the revocation.
Recommendation Based upon the findings of fact and conclusions of law reached it is recommended that a final order be entered which denies Petitioner's application for class "D" and "G" licenses. RECOMMENDED this 8th day of August, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2210 The following discussion is given concerning the proposed facts found in Respondents proposed recommended order. Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is subordinate to facts found with the exception of the second sentence which is rejected. Paragraph 7 is subordinate to facts found. COPIES FURNISHED: The Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse, General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250 David B. Ferebee, Esquire Tassone and Ferebee 1833 Atlantic Boulevard Jacksonville, FL 32207 Henri C. Cawthon, Esquire Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, the following findings of fact are made: Respondent is now, and has been since March 26, 2007, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 264941. At all times material to the instant case, Respondent was employed by the Florida Department of Corrections (Department) as a correctional officer and assigned to the Everglades Correctional Institution (ECI). Tony Pesante is now, and was at all times material to the instant case, employed by the Department as a law enforcement inspector and assigned to ECI. Brian White is now, and was at all times material to the instant case, employed by the Department as a canine inspector and assigned to the Department's Office of the Inspector General. On August 8, 2007, his canine partner was Ziggy, a certified narcotics detection dog. On or about August 6, 2007, Inspector Pesante received a tip from an inmate that Respondent was going to be bringing narcotics to ECI on August 8, 2007. Inspector Pesante observed Respondent when she parked her car in the ECI staff parking lot on August 8, 2007, and exited the vehicle. The parking lot is located on the grounds of ECI. Inspector White and Ziggy were summoned to the parking lot. Ziggy alerted to the presence of narcotics in Respondent's vehicle. Inspectors Pesante and White then searched the vehicle (after they had Respondent unlock it). In the vehicle, they found a small amount of cannabis, a partially full bottle of Absolut Vodka,2 and various letters and other written materials, including correspondence from inmates. Following the search of the vehicle, Inspector Pesante instructed Respondent to "wait in the lobby [of the facility] while [he] was getting ready to interview her." Instead of waiting in the lobby, Respondent got into her vehicle and drove off. Her employment was subsequently terminated, and she never returned to the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding Respondent guilty of "fail[ing] to maintain good moral character" and revoking her certification based on this finding. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of July, 2008.
The Issue Whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Respondent holds a Class "D" Security Officer license number D92- 03311. The license was issued in 1992. Beginning in 1992, the Petitioner resided with his companion, Tiatiana Aleksandrova, and their children Ruth and Ilia Shuvalov. On December 18, 1992, the Respondent and Tiatiana were arguing and he shoved Tiatiana. Daughter Ruth, 14 years old, was present and saw the incident occur. Apparently attempting to protect her mother, Ruth became involved in the altercation. At the point of her involvement, the Respondent grabbed Ruth by the arm and throat, and pushed her into the kitchen wall. Ruth, much younger and smaller than the Respondent, posed no threat of harm to him. Immediately after the December 18 incident, Tiatiana, Ruth and 12 year old Ilia went to the Gulfport, Florida, Police Department where they discussed the incident with Officer Michael J. Bieluwka. Officer Bieluwka went to the Respondent's home. The Respondent refused to cooperate in the investigation. Based on the accounts of the events provided by Tiatiana and the children, Officer Bieluwka believed he had probable cause to arrest the Respondent. He attempted to effect the arrest at the Respondent's home. As Officer Bieluwka placed the Respondent under arrest, the Respondent pulled his arm from the officer's grasp and attempted to get away from him. The Respondent was charged with resisting arrest without violence. Eventually, the Respondent entered a plea of no contest and was convicted of resisting arrest without violence. On June 22, 1993, Tiatiana and the children were asleep in the Respondent's home. Just before dawn, the Respondent entered the room where Tiatiana slept, kicked her, pulled her hair, and demanded that she get up. Based on the June 22 event, the Respondent was charged with criminal battery. He entered a plea of no contest and was convicted of battery. On July 20, 1993, the Respondent had shut off the water line to the house at the main valve. Tiatiana, attempting to bathe, went outside and turned the water back on. An argument ensued outside the house and continuing when they reentered the structure. As Tiatiana stood in the kitchen, the Respondent entered through a screen door. The door closed on and broke a drinking glass he held in his hand. He threw the broken glass towards Tiatiana. The glass struck and cut her right leg just below the knee. Based on the July 20 event, the Respondent was charged with criminal battery. He entered a plea of no contest and was convicted of battery. There is no evidence that Tiatiana posed a threat of harm to the Respondent at any time or that she consented to the violence. There is no evidence that commission of violence or use of force on any person was required to protect the Respondent or another person from physical harm.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department Of State, Division Of Licensing, enter a Final Order revoking the Class "D" Security Officer license of Edward Shuvalov, license number D92-03311, and imposing a fine of $1,500. DONE and RECOMMENDED this 13th day of March, 1995 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4482 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent's proposed recommended order is a statement of the financial hardship which will allegedly be imposed if he does not prevail in this case. The Hearing Officer's responsibility is to determine whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed. The imposition of penalties is governed by the Rules cited herein. The Respondent's proposed recommended order is rejected as legally irrelevant. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Richard Whidden, Jr., Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Edward Shuvalov Post Office Box 5057 Gulfport, Florida 33737
The Issue Whether or not Respondent falsified his application for employment warranting his dismissal from employment by the School Board.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver since 1989. When Respondent filed his application for employment with Petitioner, he failed to divulge the following arrests: 1983 - Aggravated battery. 1984 - Disorderly conduct and battery. 1985 - Petit larceny. 1985 - Resisting arrest without violence. 1987 - Possession of marijuana. During early 1993, the St. Petersburg Times, a local newspaper, conducted an investigation of Petitioner's employees which included compiling arrest records of all employees. Included within that compilation and investigation were the above-referenced arrests of Respondent which were not noted (by Respondent) on his employment application. Respondent does not contest the fact that he was arrested and found guilty of all the above-referenced arrests. Based on his failure to disclose those arrests, he was dismissed on March 25, 1993 for falsifying his employment application. However, he maintains that one other employee with a similar employment record, Debbie Hillman, was reassigned by Petitioner and maintained her employment, with the result that he was treated differently than other employees. Administrator Barker conducts investigations of employee conduct and at times makes recommendations respecting the employment and continued employment of Petitioner's employees. Mr. Barker recommended that Respondent be terminated when Respondent's arrest records came to his attention. Relying on the number of arrests and the nature of one arrest and conviction, particularly the offense relating to possession of marijuana during 1987, Mr. Barker determined that Respondent would not have been hired as a bus driver. This was so based upon the potential that students would be injured while Respondent drove the school bus if he did so while under the influence of drugs. Mr. Barker was familiar with the Debbie Hillman reassignment. Specifically, employee Hillman approached one of Petitioner's supervisory employees, Dr. Crosby, and advised him of a drug problem that she had and requested treatment. Ms. Hillman was enrolled in a drug treatment program where she was subjected to random and monthly urinalysis. Ms. Hillman was allowed to transfer to another position after her completion of rehabilitation because she came forth with the information and moreover, she did not falsify arrest records on her employment application. Ms. Hillman's case is factually distinguishable from Respondent's case and, therefore, does not show that Respondent was treated differently or more harshly than other employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order sustaining its dismissal of Respondent as a bus driver with the Pinellas County School Board. DONE AND ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. COPIES FURNISHED: Keith B. Martin, Esq. Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993. Leroy Brown 12048 135th Avenue North Largo, Florida 34640 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
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 arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner should be granted a Class "D" Security Officer license.
Findings Of Fact Petitioner, Cherubin Bastien (Bastien) filed an application with Respondent, Department of State, Division of Licensing (Department) for a Class "D" Security Officer license on July 1, 1994. The Department denied Bastien's application by letter dated August 24, 1994. At final hearing the only basis for denial at issue was that Petitioner was currently serving felony probation. On October 14, 1993, Bastien was sentenced, in State of Florida v. Cherubin Bastien, Case No. 93-5337CF10, on a charge of aggravated assault (firearm), before the Circuit Court of the 17th Judicial Circuit in and for Broward County, to two and one half years probation, and adjudication was withheld. Bastien's probation will not terminate until April, 1996. Bastien is currently on probation and was on probation at the time that he filed his application on July 1, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Cherubin Bastien's application for a Class "D" Security Officer License be denied. DONE AND ENTERED this 5th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 5th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-219S To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-6: Accepted in substance. Paragraph 7: Rejected as unnecessary. COPIES FURNISHED: Richard R. Whidden, Jr., Esquire Department of State/Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Cherubim Bastien 2322 Johnson Street, Apt. 1 Hollywood, Florida 33020 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
