The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: racial discrimination, by its termination of Petitioner.
Findings Of Fact Petitioner is an African-American male now 45 years old. He was discharged from employment as a heavy equipment operator with Respondent during his probationary term (within the first 120 days of employment) on July 16, 2004. Respondent qualifies as an "employer" under Chapter 760, Florida Statutes. At all times material, Respondent had an equal employment opportunity policy in place and employed Petitioner's uncle and two cousins, who are also presumably African- Americans. Respondent previously employed Petitioner's brother. Petitioner testified that during his employment, his brother was being prosecuted for alleged sexual relations with the brother's "white" stepdaughter, but admitted that this situation was never mentioned by any member of management. By all accounts, for the brief period of time Respondent employed Petitioner, Petitioner was a capable and reliable worker. Petitioner was very much desired by Respondent as an employee for his ability to handle heavy machinery until he was terminated on the basis of his criminal background. Petitioner's explanation under oath at the hearing of his criminal history is as follows: In 1982, he was convicted of the felony of conspiracy to commit armed robbery. He served nearly all of a five-year probation, but was "violated" for being in bad company. He consequently served six months in the Columbia County Jail. In 1987, he was charged with a lewd act, but was not "convicted" of that felony until he was picked up in 1990, for not completing court-ordered counseling. In 1990, Petitioner was sentenced to 12 years on the lewd act charge, but he only had to serve five years in prison. The undersigned interprets both of the foregoing situations to be revocations of probation under deferred prosecution programs. In 1997, Petitioner was convicted of the misdemeanor of driving under the influence of alcohol (DUI). On his March 30, 2004, job application to Respondent, Petitioner saw the following question: Have you ever been convicted of any violation of law other than a minor traffic violation? If "yes," explain below. (A criminal record is not an automatic bar to employment.) Petitioner erroneously interpreted the foregoing question to only require disclosure of felony convictions, so he only marked "yes" and wrote in "conspiracy & lewd act." In anticipation of hiring Petitioner, Rick Kennington, PSC's Supervisor of Labor Relations and Security, interviewed Petitioner on April 16, 2004. Mr. Kennington is a Caucasian male. During this interview, Mr. Kennington questioned Petitioner about his criminal history and made notes. Petitioner testified that he made Mr. Kennington aware of the full extent of his criminal history during the pre- employment interview. However, in light of Mr. Kennington's testimony; Mr. Kennington's contemporaneous notes on the interview (see Finding of Fact 10); the consistency of Shirley Dilger's and George Sandlin's testimony with that of Mr. Kennington, concerning a near-contemporaneous oral report of the interview to them by Mr. Kennington (see Finding of Fact 13); and the difficulty Petitioner had at hearing in explaining his criminal record, Mr. Kennington's testimony concerning what occurred during Petitioner's pre-employment interview is more credible than Petitioner's testimony. On this basis, it is found that Petitioner did not tell Mr. Kennington about his non- felony DUI conviction. He did, however, tell Mr. Kennington during the pre-employment interview, that he had been convicted of conspiracy to commit robbery because he was aware that his cousins were going to rob a store, but he failed to report it; that he had received five years' probation for the conspiracy; that he violated probation and served one year in a county jail as a result of being caught in bad company; and that he was convicted of a lewd act with an underage girl when he and the girl were both very young, but he served no jail time for the lewd act conviction. Mr. Kennington's contemporaneous notes on this interview show that however Petitioner explained the "lewd act" conviction, Mr. Kennington formed the opinion that the incident involved consensual sex with a 15-year-old girl when Petitioner was approximately 21-years-old and that Petitioner served no jail time as a result thereof. At the end of the pre-employment interview, Mr. Kennington informed Petitioner that the employer would order a background check on him and that any failure of Petitioner to disclose his criminal history would result in termination of his employment. Petitioner offered nothing more. Therefore, Mr. Kennington believed that, in light of the limited nature of what he then understood to be Petitioner's criminal history, Petitioner would be a good potential employee. He thought that Petitioner's one year in a county jail for violating the conspiracy probation was about 20 years old; that there had been no jail time associated with Petitioner's lewd act; and that Petitioner had "a relatively clean run for some years." George Sandlin is Respondent's Superintendent of Human Resources. He is a Caucasian male. Mr. Kennington told Mr. Sandlin immediately after Mr. Kennington's pre-employment interview with Petitioner that Petitioner had two convictions and had spent one year in Columbia County Jail. Mr. Sandlin did not know about any other convictions or about any time Petitioner had served in prison, and Mr. Kennington could not mention what he also did not know about. Shirley Dilger is Respondent's Human Resources Manager. She is a Caucasian female. According to her, Mr. Kennington told her immediately after the pre-employment interview that Petitioner had spent a year in a county jail. She erroneously thought this was in connection with a "burglary" charge. She did not know about, and Mr. Kennington did not inform her about, any prison time. Mr. Kennington, Mr. Sandlin, and Ms. Dilger conferred and decided to offer Petitioner a job because his last conviction appeared to be 20 years old and because the Respondent employer had past positive experiences with Petitioner's relatives as employees. Ms. Dilger stated that the three managers made the decision to hire Petitioner, in part, because Petitioner had spent no time in jail in connection with the lewd act charge and "that obviously it wasn't anything that was serious or . . . something would have happened with that charge." After Petitioner was hired on June 9, 2004, he participated in 40 hours of orientation during his first week of employment. At one point during the orientation week, Mr. Kennington led a session on security, during which he informed Petitioner and other new employees that it was important to provide complete and accurate information about their criminal background history. After the session was over, Petitioner approached Mr. Kennington. Mr. Kennington and Petitioner have very different views of the ensuing conversation. Petitioner testified that he told Mr. Kennington that he did not know if it would show up on his background check, but he had just remembered getting arrested because a girl he quit living with told police he had burglarized her house, but the charges were dropped. Nothing like the foregoing was on Petitioner's job application, and Mr. Kennington thought Petitioner was reminding him about Petitioner's lewd act conviction. Both men agree that Mr. Kennington ended the conversation by assuring Petitioner that if he had revealed everything before, he did not have to worry. At lunch that same day, Mr. Kennington told Mr. Sandlin and Ms. Dilger that he was puzzled by Petitioner's approaching him and suspected that Petitioner's background check might reveal a problem. When Mr. Kennington received Petitioner's background check report, it was a problem for him. Mr. Kennington was adamant that he received the background check report on July 14, 2004, which was a Wednesday, but the internet date of July 12, 2004, shows that if the computer's clock was correct, someone printed the report off the internet on July 12, 2004, which was the preceding Monday. This discrepancy of dates is immaterial in that all witnesses agreed that Mr. Kennington and Mr. Sandlin confronted Petitioner as early as 7:00 a.m., on Thursday, July 15, 2004. The criminal background report received on Petitioner by Mr. Kennington would be confusing even to a lawyer. Petitioner, Mr. Kennington, and Mr. Sandlin are not lawyers. On its face, the report shows a finding of "guilty" for a conspiracy/armed robbery charge on 10/10/84 resulting in two years, six-months' confinement, with 373 days credited for time served. The report also shows that Case No. 1987-004757CFA, dated 5/16/87, as a "sexual battery/slight force" felony charge was placed in the deferred prosecution program as of 6/08/87. That same case number shows a "lewd assault on a child" felony charge was also placed in the deferred prosecution program as of 6/08/87. It further shows a different case number, Case No. 1988-003327CFA, peculiarly dated 5/02/87, resulted in a finding of guilty as of 11/29/90, on the felony of "lewd and lascivious act/simulated sexual battery," with a resultant prison time of 12 years with 124 days' credit for time served. The report finally shows a 1997 finding of guilty for DUI as a traffic misdemeanor, with a fine. When Mr. Kennington and Mr. Sandlin called Petitioner in for a meeting about the background check report at 7:00 a.m., July 15, 2004, Mr. Kennington asked Petitioner why Petitioner had failed to tell him about the prison time Petitioner had served, but Petitioner had no response. According to Petitioner, during their July 15, 2004, meeting, Mr. Kennington questioned him about a perceived disparity between a 1987 entry on the background report, when Petitioner was initially charged in connection with a lewd act on a child, when he was not sentenced to prison at all, and a 1990 entry, when Petitioner was convicted and sentenced to twelve years in prison. Petitioner stated that Mr. Kennington, "[k]ept asking me did I do anything else in 1987 and 1990, another sexual act." It was obvious to Petitioner at the time that Mr. Kennington was concerned, based on the way the offenses were listed with different case numbers and dates on the background check report, that Petitioner might have committed three or four sexual felonies instead of just one, for which probation was ultimately revoked. Mr. Kennington testified that during the July 15, 2004, meeting, Petitioner finally indicated to him that Petitioner's "lewd act" conviction was a continuation of a single "lewd act" charge. In this regard, Petitioner specifically testified at hearing that he had violated the K.I.D.D.S. Program and, as a result of that violation, he was later sentenced to 12 years in prison, of which he served five. (See Finding of Fact 6.) Mr. Kennington took notes of the July 15, 2004, meeting and drew a star by an entry where he wrote, "5 years in prison, Baker Corr., Panhandle, 1990." It is clear from the evidence as a whole that only on July 15, 2004, did Mr. Kennington fully understand that Petitioner had served time in prison, as opposed to a county jail, and that the time Petitioner served had been for the "lewd act" felony conviction, not the prior conspiracy to commit robbery felony conviction. Petitioner claimed that during this interview, out of the blue, Mr. Sandlin asked him if the girl involved in the lewd act charge was "white" or "black." However, Mr. Sandlin and Mr. Kennington are more credible in their testimony that Mr. Sandlin asked the foregoing question when Petitioner told them that he had gone to trial in that case; that the underage girl involved in the lewd act charge did not testify; that it was her mother who forced the issue; and that his trial on the lewd act felony charge had been racially discriminatory. Mr. Sandlin acknowledged that he had asked the question, but testified that the reason he asked it was that he was under the impression that Petitioner had been discriminated against in the lewd act trial. Petitioner was less credible when he denied at hearing that he ever claimed in the July 15, 2004, meeting that discrimination occurred in his lewd act trial. However, it is undisputed that Petitioner answered Mr. Sandlin in that meeting that the girl was "black," and that otherwise, race was never discussed. During the July 15, 2004, meeting, Petitioner told Mr. Kennington and Mr. Sandlin that he could not remember how old the girl or he was when the lewd act occurred. Kennington and Sandlin did the math and concluded that Petitioner was 27 and the girl was 15 at the time of the offense. At the end of the July 15, 2004, meeting, Mr. Kennington told Petitioner that this was a very serious matter and there were going to be discussions with upper management. Mr. Kennington, Mr. Sandlin, and Ms. Dilger met after the July 15, 2004, meeting of Mr. Kennington, Mr. Sandlin, and Petitioner. Mr. Kennington, Mr. Sandlin, and Ms. Dilger each testified individually that he or she would not have hired Petitioner if they had known the full extent of Petitioner's criminal history from the beginning. All three were concerned about the difference in age between Petitioner and the girl (a 27-year-old man and a 15-year-old girl) and that Petitioner had spent five years in prison instead of a year in a county jail, but each executive emphasized one or the other concern. All three executives were concerned with Petitioner's prior lack of candor. Ms. Dilger was concerned about the lewd act conviction as she finally understood it, because of the high number of women and low number of security persons Respondent employed in relation to the extensive size of Respondent's premises. Mr. Kennington was upset about Petitioner's nondisclosure of his DUI conviction, even though it was only a traffic misdemeanor, because Mr. Kennington did not consider any DUI to be "minor." The three managers sought the advice of corporate representatives in Chicago in making the decision to terminate Petitioner. Race, including the race of the girl with whom Petitioner had sex in 1987, was not discussed at any time during any managerial deliberations. The next day, July 16, 2004, a meeting took place including Mr. Kennington, Mr. Sandlin, Petitioner and a security officer, Kenny Gaylord. Petitioner conceded at hearing that Mr. Kennington informed Petitioner at that time that Petitioner's employment was being terminated for lack of confidence and for Petitioner not being truthful in the hiring process. In the course of the Florida Commission on Human Relations' investigation of Petitioner's subsequent Charge of Discrimination, Mr. Kennington provided an affidavit which represented, among other things, that Petitioner was terminated because he was guilty of five felonies and failed to disclose them. This affidavit is technically a prior statement under oath which is inconsistent with the reason given by Mr. Kennington to Petitioner on July 16, 2004 (see Finding of Fact 38), and inconsistent with his testimony at hearing. However, other parts of the same affidavit break down the charges and convictions consistent with Mr. Kennington's testimony at the hearing. Furthermore, the greater weight of the credible evidence at hearing shows Mr. Kennington never has understood the number of felonies listed on the background check report, which may be either two or three felonies, depending upon how the case numbers are interpreted. It further shows that Petitioner's July 15, 2004, explanation that he had only two felony convictions. Accordingly, there is no significance to the insubstantial inconsistency on Mr. Kennington's affidavit. Moreover, by no interpretation does his July 16, 2004, statement to Petitioner, his affidavit, or his hearing testimony establish that Mr. Kennington had a racial reason for terminating Petitioner. Petitioner admits that no one told him, prior to his termination, that he was being terminated because he allegedly had "five felony convictions." Petitioner also attempted to show at hearing that an affidavit by Mr. Sandlin stated as a reason for Petitioner's termination that Petitioner had failed to disclose that Petitioner had relatives working for Respondent. However, Mr. Sandlin's affidavit as a whole cannot reasonably be read to mean that. Respondent has terminated both Caucasian and African- American employees during their probationary 120 days for nondisclosure, based on their background check reports.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination herein. DONE AND ENTERED this 11th day of April, 2005, in Tallahassee, Leon County, Florida. S 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 11th day of April, 2005. 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 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver Post Office Box 550770 Jacksonville, Florida 32255-0770 Brian S. Duffy, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver Post Office Drawer 229 Tallahassee, Florida 32302-0229 David C. Braun, Esquire 934 Northeast Lake Desoto Drive Lake City, Florida 32055
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant to this matter, Ricky L. Sapp held Florida Teaching Certificate number 528297, in elementary education and was employed as a math teacher at Belleview Middle School, Escambia County, Florida. During the 1985-1986 school term, Shawn Dickinson, a 13-14 year old male, was a student in the Respondent's math class. During the fall of 1985, Sapp began to employ the student to perform tasks including yard work, car washing and other small jobs. Dickinson went to Sapp's home both to perform odd jobs and on a social basis. The student gave gifts to Sapp and other teachers at Christmas 1985. Sapp and two other teachers gave the student a pair of jeans. During the 1985- 86 school term, Sapp assisted the student with a science project. On at least one occasion, they attended a movie together. On other occasions Sapp took the student along with a group of other students on a deep-sea fishing trip. During the summer of 1986, Dickinson began to reduce his social contact with Sapp. While Dickinson's mother had expressed to her son her desire that he associate more often with people his own age, she did not forbid him from visiting Sapp. She did not express her concern to Sapp. On one occasion Sapp spoke with Dickinson's mother and asked her to permit the student to have dinner at Sapp's home. She agreed to allow the student to attend with a friend of his and instructed the boys to remain together; however, the student's friend left Sapp's home. Dickinson and Sapp may have engaged in an argument. Following that incident, Dickinson's mother refused to permit him to further associate with Sapp. In the fall of 1986, the mother spoke with the school principal about Sapp and her son. She also talked with the vice- principal and guidance counselor, apparently related to the same concerns expressed to the principal. She did not communicate with Sapp. The student testified that during this time Sapp sent messages to him through other students but there was no information as to the nature of the messages. During the fall, both the student and his mother, according to testimony, received telephone calls from Sapp during which he relayed his feelings regarding the situation. Sapp denied making the phone calls. The mother also received calls from someone who would hang up when she answered. She believed the calls were from Sapp. During this time period Dickinson's family had their telephone number changed. At about the same time, the mother's car tires were slashed. In early October 1986, Sapp's home was burglarized and various items were stolen. Sapp had reason to believe that Dickinson was involved in the incident. He contacted the boy's parents and accused the student of the theft of approximately $1,300.00 of personal items. The boy's mother did not believe her son had committed the act. Sapp also contacted the police who investigated the incident. At about the same time, the police conducted an investigation into the slashed tire incident and the phone "hang-ups", during which Dickinson was apparently questioned. Dickinson was not charged in the matter. At the administrative hearing Dickinson denied stealing any of Sapp's belongings, but stated that he possibly "stole my stuff back from him." In early November 1986, Sapp was arrested and charged with lewd and lascivious acts on a child, Shawn Dickinson. Sapp attempted to have the student and his family withdraw their accusations and apparently offered to reimburse the student's family for the cost of having their phone number changed and for replacement of the car tires, but was unsuccessful. The Respondent was subsequently tried on the charge and found not guilty. (R-1) COUNT I Count I of the administrative complaint alleges several instances of sexual contact between Sapp and Dickinson. Sapp denied the allegations. The evidence did not clearly and convincingly establish that such sexual contact took place. The testimony of the student related to the allegation of sexual content was limited to the student's assertion solely that such contact, one instance wherein Sapp performed oral sex on Dickinson, and 20- 25 instances wherein Dickinson performed anal intercourse on Sapp, occurred. Dickinson stated that he told no one other than the police about the contact. The claimed contact supposedly occurred over a period of approximately six months. Dickinson stated that he continued to participate in the activity because of alleged threats made by Sapp. The threats included having Dickinson's class schedule changed, killing his dog, having one of Dickinson's "best friends" attack him, and putting a bomb in his mother's car and killing her. Dickinson admitted that he had never revealed the threat to kill the dog prior to the administrative hearing, although he has testified several times previously about the threats. At one point on direct examination the student testified that he first revealed the sexual contact to the police when Sapp "got arrested and I had to go talk to the police." (Tr.19) Yet Sapp was arrested for the alleged sexual contact with the student. Dickinson stated that he terminated the alleged contact with Sapp because his parents were suspicious of the amount of money Dickinson was receiving. However, there was no evidence that funds changed hands other than as a result of the odd-jobs Dickinson performed for Sapp. The administrative complaint alleges that the student received approximately one hundred dollars over the 1985-1986 period, an amount which appears reasonable in relation to the work apparently performed. Because the student's explanation of events and reasons for permitting the alleged contact to continue are vague and confusing, his testimony is not credible. The allegation of sexual contact between Dickinson and Sapp is rejected as not being supported by clear and convincing evidence. COUNT II Count II alleges several instances wherein Sapp has been convicted or had adjudication withheld in criminal offenses and has failed to disclose such facts on his application for teacher certification. One allegation concerns a charge of telephone harassment against Sapp. The arrest supposedly was related to numerous phone calls to the home of Dickinson. While there was testimony by Dickinson and his mother which indicated that they had received phone calls which could be termed harassing, and that such calls were or were believed to be from the Respondent, there was no evidence that he was ever arrested for such activities. The evidence introduced at hearing indicates that the arrest which occurred in November 1986 was related to the alleged sexual contact. The Petitioner did not meet the burden of proof on this allegation. Further, the administrative complaint alleges that Sapp was charged with one count of passing worthless checks in October, 1977 and three counts of passing worthless in June, 1987. No evidence was presented on these allegations. In October 1979, Sapp was involved in a lounge fight and was subsequently charged with simple battery. Sapp pled guilty. Adjudication was withheld, and a fine and six months probation were imposed. (P-9) In December 1979, Sapp was involved in a parking lot altercation and was subsequently charged with criminal mischief. Sapp pled not guilty. Adjudication was withheld and six months probation was ordered. (P-8) In December 1976,2/ Sapp was charged with leaving the scene of an accident, a criminal traffic offense. Sapp pled not guilty, but was found by a judge to be guilty. A $52.00 fine was imposed. (P-7) On Sapp's applications for teacher certification filed in September 1982, October 1982, October 1984, June 1985 and December 1985, he replied in the negative to 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 violations?" (P-2, P-3, P-4, P-5, P-6) On the applications Sapp acknowledged by signature that his responses on the application were true, correct, and on three applications, complete. 3/ On his applications, Sapp indicated that he had not been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation even though adjudication has been withheld in the simple battery and criminal mischief cases in 1979. The Petitioner testified at hearing that he did not understand the relevant portion of the teaching certificate application. He testified that he did not intend to deceive the Petitioner, that he did not understand the meaning of the term "adjudication withheld," that he did not list any arrests because, prior to the lewd and lascivious charge of November 1986, he had never been handcuffed or otherwise restrained which to him signified arrest, and that he had not intended to conceal the information. However, he did indicate that on several occasions he had heard a judge say "adjudication withheld" and that he made no attempt to learn the meaning of the term. Sapp's assertion that he did not intend to mislead the Petitioner is rejected in light of his attestation that the information he provided was complete, correct and true. Sapp failed to disclose the material facts of prior legal entanglements on his applications for the teacher certificates, in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B-1.006 (5)(h), Florida Administrative Code. Accordingly, insofar as the preceding findings of fact state, the Petitioner has met the burden of proof as to the related allegations of Count II. COUNT III The administrative complaint charges that Sapp has violated Section 231.28(1)(e), Florida Statutes, in that he has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. The evidence establishes that in 1976, Sapp was convicted of a criminal traffic offense, failure to remain at the scene of accident, and was fined fifty-two dollars. Section 231.28(1)(e) , Florida Statutes, provides for appropriate disciplinary action where the certificate holder has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. Section 316.655, Florida Statutes, establishes that failure to remain at the scene of an accident involving damage to property, a violation of Section 316.061, Florida Statutes, is included among those violations identified as criminal offenses. Other violations classified as criminal offenses include failure to remain at the scene of an accident involving death or personal injury, providing false information in circumstances where the uniform traffic control law requires that information be provided, failure to obey the orders of police and fire department officials, reckless driving, driving under the influence, fleeing or attempting to elude a police officer, obstruction of traffic for purposes of non-permitted solicitation, and failure or refusal to submit a vehicle to weight and load testing upon request. The potential penalty for violation of Section 316.061, Florida Statutes, is a fine of not more than $500.00 or imprisonment for not more than sixty days or both. An examination of the range of potential penalties for criminal traffic violations indicates that the penalty for violation of Section 316.061, Florida Statutes, is less severe than the penalties provided for other violations. Accordingly, it is found that the violation of Section 316.061, Florida Statutes, is a minor traffic violation. The allegation of Count III is rejected. COUNT IV The administrative complaint charges that Sapp, based on the prior allegations, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, pursuant to Section 231.28(1)(f), Florida Statutes. Although the Petitioner presented testimony related to the allegations and the resulting effectiveness of Sapp, such testimony was based on all of the allegations being established by the requisite burden of proof. In that such allegations were not established, this Count is rejected. COUNT V The administrative complaint alleges that, pursuant to Section 231.28(2), Florida Statutes, Sapp has pled guilty or been found guilty of an offense contained within Section 231.28(1) , Florida Statutes, which is prima facie proof of grounds for revocation of the certificate. Section 231.28(1)(d), Florida Statutes, includes misdemeanors, felonies, and certain other criminal charges. The evidence established that in October 1979, Sapp pled guilty to simple battery, a first degree misdemeanor. Section 784.03(2), Florida Statutes (1975). Accordingly, the burden of proof has been met and Count V is sustained. COUNT VI COUNT VII COUNT VIII COUNT IX COUNT X COUNT XI The above six Counts were related to allegations of sexual contact between Sapp and Dickinson and are rejected as not established by the requisite burden of proof. COUNT XII The administrative complaint alleges that the Respondent has failed to maintain honesty in all professional dealings pursuant to Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(5)(a), Florida Administrative Code. As to the allegations supported by the burden of proof, Sapp failed to disclose material facts on applications filed for purposes of obtaining or retaining teacher certification even though he attested to the truthfulness of the information. The failure to provide the information is found to be a failure to maintain honesty in his professional dealings, accordingly, Count XII is sustained. COUNT XIII The administrative complaint alleges that in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B- 1.006(5)(g), Florida Administrative Code, Sapp submitted fraudulent information on a document in connection with his professional activities. Sapp testified that he did not understand the question on the application for teacher certification related to prior criminal offenses, and did not intend to mislead or deceive the Petitioner. However, more than once he admitted to having heard a judge state that adjudication was withheld in connection with the various separate offenses, and that he did not know the meaning of the term. Yet he attested that the information submitted on two applications was true and correct and on three later applications that the information was true, correct and complete. The attestation of truth, correctness and completeness implies that the attestor understands the questions and that his responses are based on such understanding. To provide false information or to make material omissions of fact on such an application constitutes the submission of fraudulent information. Accordingly, the Petitioner has met the burden and Count XIII is sustained.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order imposing a fine of $1,000.00. DONE and ENTERED this 6th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1988.
The Issue The Petitioner requested a hearing pursuant to Section 120.57 (1)(b)(1), Florida Statutes, and as grounds therefor alleged that the Respondent, Cynthia Ann Schoneck, on or about September 12, 1975, at approximately 11:00 a.m. violated Monroe County District School Board policy rule 2.5.1 "in that the Respondent on said date on school property was in possession of a controlled substance that is categorized as a harmful drug under the provisions of Chapter 893, Florida Statutes. Based on this allegation, the Petitioner seeks to suspend or dispel the Respondent from school.
Findings Of Fact At the outset of the hearing, counsel for Respondent requested from Petitioner's counsel a list of drug(s) that were in the Respondent's possession on the date in question so that he would be prepared to properly defend. Pursuant thereto, counsel for the Petitioner stated that the Respondent had in her possession valium and phenobarbital tablets while she was on the school's property, all in violation of school board policy rule 2.5.1 and which are prescribed by Chapter 893, Florida Statutes. As to the allegation that the Respondent had in her possession phenobarbitol on September 12, counsel for Respondent contended that he was unaware that any charge had been made alleging that she possessed such drugs inasmuch as the drug analysis which was attached to the police report showed or asserted that the Respondent only had in her possession the drug valium. The undersigned noted that counsel for the Respondent had filed no motion to compel discovery or for a more definite statement which in his opinion was needed in order to properly prepare his defense and this being the state of the record, the undersigned considered Respondent's counsel's claim of "surprise" to be without merit. Norman Thomas Lee, an employee of the Monroe County School District and presently a criminologist and a property custodian for the county testified that he is a member of the American Society of Crime Labs and that he has been classified as an expert witness to testify in criminal proceedings in Circuit, County and Municipal courts in Monroe County. Lee testified that on or about September 11, he received from Alfredo Vasquez (phonetic), a patrolman, a sealed envelope which has been marked for identification and received into evidence as Board Exhibit 1. He further testified as to the copy of the report which is an analysis of the contents of Board Exhibit 1. Based on his lab analysis, he was able to determine that the contents of the sealed envelope was negative on all drug or narcotic tests except the spot test and electroscopic test which in fact showed that the drug or the tablets contained valium or diazepan. He testified that he kept the drug under seal while in his possession and thereafter, it was in the custody and control of the sheriff's department at all times in a sealed vault. He further testified that valium is a drug that is not controlled by Chapter 893, F.S. He testified that he conducted no inspection and analysis for phenobarbitol. Cynthia Ann Schoneck was called and pleaded the 5th amendment to all questions put to her by counsel for the Petitioner with the exception of stating her name and address for the record. Donna Roberts was called and testified that she is a student at Key West High School and that she knows the Respondent. She testified that on September 11, she complained to officials that the witness attempted to sell or give her "downers." She testified that on September 12, she was absent from school although she vaguely recalled seeing the Respondent briefly during the day because she visited the campus for a short period. 1/ Mary Llewlyn, the dean of girls for approximately 20 years testified that she knows the Respondent and that on or about the date of September 12, Mr. Roberts and Mr. Cebelli (apparently instructors) testified that the Respondent had in her possession pills; she testified that upon learning of this she immediately visited the Respondent's class and asked her to accompany her to the dean's office. She testified that during this period, which was the third period and a morning class, that the Respondent was in a science class. Mrs. Llewlyn testified that the Respondent admitted to her that her parents were in Europe and that she took the pills in question from her father's medicine cabinet. Llewlyn testified that she was given the pills from an open package which was found in the Respondent's purse. She testified that she called the Respondent's uncle and her sister and they were at a loss to explain how the pills got into the Respondent's purse. She testified that she also asked the Respondent how the pills got into her purse and she denied having any knowledge. She also testified that the Respondent stated to her that she was selling pills which she thought to be phenobarbital. Llewlyn testified that she did not recall which specific date that the Respondent had possession of the pills. Curtis Phelps, a ninth grade student, was called and testified that he was in a class with the Respondent on September 12 and that he also attended the third period lab class with her. He testified that the Respondent gave him a bottle of pills and that she instructed him to "get rid of the pills." He testified that he placed the pills in the biology sink and left them there. On cross examination he did not recall any date as to when the incident regarding the pills took place. The Petitioner rested its case. At the conclusion of the testimony of the Petitioner's case in chief, counsel for Respondent requested the undersigned to take official notice of Florida Statutes, Chapter 593 and also the student rule in question and to note that the possession of valium is not a drug which falls within the guidelines of Chapter 593, F.S. He also provided for the record, the fact that there was no chemical testimony as to any alleged possession of phenobarbital by his client, the Respondent, and that the matter should be dismissed based on lack of evidence. He testified that no creditable testimony and in fact no chemist would testify as to the contents of a particular pill without having subjected it to various chemical tests for analysis. He testified further that in this case, no such finding of phenobarbital had been made and that therefore the case against his client must fall. The position urged by Respondent's counsel is well taken. The evidence reveals and the statute nor the school rule under which the Respondent was charged does not cite the possession of valium as being a prescribed substance. The proceeding herein involves the interpretation of penal statutes which must be strictly construed. Aside from the poor status of the record which tended to show that Respondent possessed valium on the School's property, Florida Statute Chapter 893 and the school's own rule do not proscribe the possession of valium on school property. This factor plus the record evidence concerning the petitioner's counsel failure to pursue the possession of valium as an act contrary to school rules, puts the matter to rest. The only remaining act which the Respondent allegedly committed and which the petitioner sought to pursue was the alleged possession, by Respondent, of phenobarbital. The record, absent the mere allegation by Mrs. Llewlyn that the petitioner "thought that she was selling phenobarbital," is barren of any creditable evidence. Accordingly, it is RECOMMENDED that this allegation be DISMISSED due to lack of proof and withdrawal of any proposed suspension of Respondent based on the charges filed herein. DONE and ORDERED this 29th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1976.
The Issue The issue is whether Respondent is guilty of gross immorality or an act involving moral turpitude or an immoral conduct because the State Attorney's Office filed a misdemeanor charge of possession of controlled substance, and Respondent entered and completed a pre-trial intervention program and the State Attorney nolle prosequi the criminal charge. The Board of Education is now prosecuting Respondent for possession of a controlled substance. In a possession of controlled substance charge, there shall be proof of two distinct elements. The Board of Education must prove that: (1) Respondent had knowledge of the presence of the controlled substance, and (2) Respondent had knowledge of the illicit nature of the controlled substance.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence in evidence deemed relevant and material, and the entire record complied herein, the following relevant and material facts are found: At all times material and pertinent hereto, Respondent, David J. Suldo, a state-certified teacher, had worked 21 years with the Osceola County School District and had been appointed Director and Coordinator of Human Relations Issues. Respondent was born and reared in Osceola County and, after attending college, returned to enter the school system. He and his wife own a five-acre homestead in Osceola County where they, along with their family, enjoyed a long and friendly relationship with many of his students and their parents in the small community of Sebring, Florida. He is currently employed by the Orange County School Board. Respondent holds a Florida Educator's Certificate No. 378761, covering the areas of Administration/Supervision and Psychology, which is valid through June 30, 2005. Currently, Respondent is employed as Dean of Sixth Grade at Westgate Middle School in the Orange County School District. Before the issue raised by the allegation in the case at bar, Respondent has never had a complaint filed against him. On the weekend of January 30, 1998, Respondent and his wife drove away in their jointly registered family car from a Seven-Eleven parking lot, in Sebring, Highlands County, Florida, and were stopped by Officer, Donald Minervino, for an expired tag. In response to the Officer's request to produce his diver's license, Respondent produced his Director of Student Services Osceola County School District identification card,1 explaining that he lost his driver's license a few days prior. Officer Minervino requested that Respondent and his wife exit the vehicle, which they did, and he requested permission to search the vehicle, which was granted. During his search, Officer Minervino found a small baggie containing a suspected controlled substance in the console of the vehicle. Officer Minervino found a small amount of illicit substance in a plastic bag and a broken pipe. Also found in the console was a St. Cloud High School, 1995-96, I.D. card of Scott Suldo, a tenth grader, who is Respondent's son. During his interrogation, Officer Minervino asked Respondent if he would like to make a statement regarding the suspected illicit substance in the baggie and the broken pipe. Respondent answered "NO," and made no statements regarding knowledge of the presence of the illicit substance or knowledge of the nature of the illicit substance recovered from the console of the family car. Officer Minervino observed two beer bottles, one of which was open, in the vehicle. Because of this traffic stop, vehicle search, interrogation of vehicle occupants, and observation of their movements and speech patterns, Officer Minervino concluded neither was intoxicated and no roadside sobriety tests were taken. The Officer issued Respondent two citations: (1) warning citation for the expired tag, and citation for having an open container (beer bottles) in the vehicle.2 Officer Minervino did not arrest Respondent on a charge of possession, but filed an Affidavit Prosecution Summary (APS) with the State Attorney's Office regarding the baggie of illicit substance and the broken pipe,3 in accord with the Osceola County Sheriff's Department's policy. On Monday following the January 30, 1998, traffic stop incident, Respondent met with Dr. Thomas L. McCarley, superintendent of the Osceola County School District, and they mulled over and discussed the situation. Dr. Thomas L. McCarley offered Respondent the opportunity to transfer to another school district pending the outcome of the ongoing investigation, specifically, the potential outcome regarding the content of the plastic bag, i.e. whether the State Attorney would or would not file criminal charges. Having considered his career opportunities, his family, and his lifetime residency in Sebring, Florida, Respondent opted to retire from the Osceola County School District and did so on or before February 13, 1998.4 Sebring, Florida, is a small community and community members of long standing know each other well. The community knew of Respondent's long association with and his position within the school system; they knew also of his traffic stop by the local police and the police finding illicit materials in Respondent's family car. The Sebring local newspaper ran, almost daily, updates and recounts of this incident over an extensive period. Respondent is of the opinion that the prolonged newspaper publicity created public pressure on the State Attorney's Office, who, months after the incident, filed misdemeanor criminal charges against Respondent. At some undetermined time before September 1998, the State Attorney for the Ninth Judicial Circuit, in and for Osceola County, Florida, filed a two-count misdemeanor criminal charge of Possession of Cannabis and Possession of Drug Paraphernalia against Respondent. On or about September 1, 1998, the State Attorney for the Ninth Judicial Circuit, in and for Osceola County, Florida, in open court filed nolle prosequi5 of the two-count misdemeanor criminal affidavit. Listed as "Exculpatory information received" was checked the statement: "Defendant completed pre- trial diversion program." Subsequent to September 1, 1998, the Orange County Superintendent of Public Schools asked Respondent to apply for employment with the Orange County School Board because there existed a need for someone with Respondent's particular expertise and training in "student issues." After completion of the Orange County School Board's application form, Respondent was interviewed by the Orange County School Board. During his interview, Respondent informed the Orange County School Board of the circumstances, from the initial traffic stop, retiring from Osceola County School District, the misdemeanor criminal charges filed against him, his retaining counsel, his entering and completing the pre-trial program, and his having taken several independent and successful drug tests since the incident to demonstrate that he was not a user of drugs. On August 5, 2002, the Orange County School Board offered Respondent a 196-day, 2000-2003 school year, professional Instructional Personnel contract of employment with the Orange County School System. Respondent accepted the Orange County School Board's offer and formally executed his employment contract on December 5, 2000. Mrs. Joy Suldo, wife of Respondent, took the vehicle in question to Circuit City for a stereo upgrade and repair then to Addison's Body Shop for minor repair work picking up the care on or about January 27, 1998. From the body shop, she took the car to the upholstery shop for a day and a one-half day. At these several service location, employees had access to the vehicle. Mrs. Suldo did not open or check the console when she returned the car home. Respondent's son also had access to the vehicle, along with his friend and fellow band members. Respondent recalled seeing several of them sitting together in the car listening to the enclosed sound car stereo. His son and his friends had unlimited access to the vehicle. Multiple accesses to the vehicle by persons other then Mr. Suldo created, not an inference of solo possession by Mr. Suldo, but rather created the burden of upon Petitioner to reinforce the inference of constructive possession by Mr. Suldo. There was no evidence was presented by Petitioner from which circumstantial constructive possession by Respondent could in inferred. At all times material to the case at bar, there was no teacher's labor union contract between teachers and the Osceola County School Board. Petitioner has offered no evidence to prove the allegation contained in its letter dated October 25, 2001, to wit: possession of a controlled substance.6 No evidence was offered to prove that Respondent knew of the illicit nature of the substance or that Respondent knew of the presence (in the vehicle) of the illicit substance. Therefore, Petitioner has failed to prove Respondent actually possessed or constructively possessed a controlled substance. Petitioner's substantial evidence failed to demonstrate that from the circumstances of this incident that Respondent is guilty of gross immorality or an act involving moral turpitude.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 January, 2003.
Findings Of Fact Based upon the record evidence, the following Findings of Facts are made: Idaliza Roman is employed by Respondent as a Collections Specialist II. She is assigned to Respondent's Plantation, Florida office. As part of her job responsibilities, she issues assessments against persons suspected of having engaged in illicit drug activity made taxable by Section 212.0505, Florida Statutes. On October 13, 1989, Roman issued such an assessment against Petitioner. She also issued and filed a tax warrant based on the assessment. The assessment alleged that, on or about August 16, 1989, Petitioner had engaged in a taxable transaction involving 27 kilograms of cocaine. In making this allegation, Roman relied exclusively upon information she had gleaned from a probable cause affidavit contained in a court file, as well as a laboratory report and a property room receipt. She conducted no further investigation into the matter before issuing the assessment. The probable cause affidavit upon which Roman relied reflected that Petitioner had been arrested on August 16, 1989, for a cocaine-related offense. It did not reveal, however, when the alleged offense had been committed. Roman assumed, erroneously, that it had been committed on or about the date of Petitioner's arrest. The arrest actually had been for an offense, involving substantially less than 27 kilograms of cocaine, that Petitioner had allegedly committed in January, 1989. The authorities had no information that Petitioner had been involved in any illicit, drug-related activity on or about August 16, 1989. On April 3, 1990, Roman discovered that the October 13, 1989, assessment against Petitioner and the tax warrant she had issued based on the assessment were incorrect. She thereupon issued and filed a "corrected" tax warrant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued sustaining Petitioner's challenge to the October 13, 1989, jeopardy assessment issued against him and rescinding the assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of May, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1990.
The Issue Whether the Agency for Persons with Disabilities abused its discretion when denying Petitioner’s request for exemption from being disqualified to work in a position of special trust.
Findings Of Fact Disqualifying Offenses As noted above, the Department of Children and Families, by correspondence dated July 5, 2018, informed Petitioner that his background check revealed two disqualifying offenses. The first offense is described by the Department as “04/25/2014 PINELLAS PARK POLICE DEPARTMENT, LARCENY,” and the second is described as “08/30/2005 ST. PETERSBURG POLICE DEPARTMENT, BATTERY DOM-VIOL.” As an initial matter, the August 2005 offense does not disqualify Petitioner from working in a position of special trust. Specifically, on August 30, 2005, Petitioner was arrested, and charged with misdemeanor battery in violation of section 784.03, Florida Statutes (2005), which is a disqualifying offense. Petitioner’s arrest occurred as a result of a physical altercation with his brother, who was a minor when the alleged offense occurred. According to the case summary sheet (Resp. Ex. 2, p. 99), on April 13, 2006, the charge was reduced to the “lesser included misdemeanor [of] disorderly conduct,” to which Petitioner entered a plea of nolo contendere. On or about May 17, 2006, Petitioner was “adjudicated guilty” of disorderly conduct in violation of section 509.143, Florida Statutes (2005). A violation of section 509.143 is not a disqualifying offense under any of the controlling statutes. On April 25, 2014, Petitioner was arrested and charged with violating section 812.014(2)(c)1., Florida Statutes (2013). This section provides, in part, that “[i]t is grand theft of the third degree and a felony of the third degree … if the property stolen is … [v]alued at $300 or more, but less than $5,000.” On May 28, 2014, Petitioner was found guilty of the offense as charged (adjudication of guilty withheld), and ordered to serve 18 months of probation which included restitution of $75.00 to the victim. According to Petitioner, this offense occurred when he stole cellphones from a Metro PCS store. Non-disqualifying Offenses On August 20, 2018, Petitioner was cited for multiple traffic violations. According to the arrest affidavit, the following events occurred: A stop was initiated on the Defendant’s vehicle for failure to stop at a steady red signal. Upon initiating a stop utilizing emergency lights and sirens, the defendant failed to stop for the emergency vehicle. He continued 3 blocks to the Choice gas station located at 3401 5th Ave., S. Upon making contact, Defendant was identified by FL DL and confirmed via David as being suspended on 8/13/2018 with notice provided on 8/9/2018 for failure to pay a traffic penalty. David also confirmed 4 prior DWLS/R convictions and previously listed as a habitual traffic offender. Petitioner was cited for felony “driving while license suspended or revoked, fleeing and eluding police officer, [and] possession of marijuana.” On October 9, 2018, the State Attorney administratively closed the “marijuana and fleeing” charges, and on October 11, 2018, reduced the felony “driving while license suspended or revoked” charge to a misdemeanor. On November 14, 2018, the Court (Judge Dittmer) accepted Petitioner’s guilty plea, and adjudicated him guilty of the misdemeanor offense of “driving while license suspended or revoked.” See Resp. Ex. 2, p. 253 and 255. While the charges referenced in the previous paragraph were pending, Petitioner, on October 6, 2018, was stopped by the police, and again cited for the felony offense of “driving while license suspended or revoked.” Unlike before, there was no reduction in this charge, and on November 14, 2018, Petitioner entered a plea to the charged offense, and was adjudicated guilty (Judge Quesada) of the third-degree felony of “Driving While License Revoked (Felony-Habitual).” See Resp. Ex. 2, p. 260-265. General Background Information Petitioner is enrolled as a student, and is working towards earning his associate of arts degree. Petitioner has a sporadic work history, and during the last few years has subsisted primarily on student loans. Petitioner testified that he regularly attends church. He is not involved in any community activities, nor has he received any special recognition or awards since his conviction for the disqualifying offense. From approximately October 2016 through June 2020, Petitioner worked at several institutional facilities that offer services to vulnerable adults. During this timeframe, Petitioner was investigated five times for possible mistreatment of vulnerable individuals, with each investigation dismissed as unsubstantiated.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner’s request for exemption. DONE AND ENTERED this 22nd day of April, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2021. COPIES FURNISHED: Clifford Pennywell Apartment B3 5295 59th Circle West Kenneth City, Florida 33709 Trevor S. Suter, Esquire Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Francis Carbone, General Counsel Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Radhika Puri, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399 Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 Barbara Palmer, Director Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
The Issue Whether Respondent may be disciplined for failure to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, which requires that a correctional officer have good moral character.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent, Kalangie J. Serrano, is a state certified correctional officer holding certificate No. 186788. In the early morning hours of February 9, 2002, Respondent was observed by Orlando Police Department Officer Jonathan Cute sitting in the driver's seat of Respondent's automobile. As Officer Cute approached the vehicle, he smelled a strong odor of marijuana coming from the vehicle and observed smoke in the passenger compartment of the automobile. As Officer Cute approached the vehicle, he noticed Respondent place something onto the center console of the vehicle. As Respondent exited the vehicle at Officer Cute's request, Officer Cute observed and smelled a cloud of marijuana smoke in the interior of the vehicle and determined that the object placed on the vehicle's console was a red metal pipe typical, in his experience, of the type of pipe used for smoking marijuana. Noting the presence of a burning residue in the pipe and suspecting it to be marijuana, Officer Cute performed a field test on the substance which tested positive determining that the substance was cannabis. Officer Cute arrested Respondent and charged him with possession of less than 20 grams of cannabis and possession of drug paraphernalia. No admissible evidence was received as to any determination of the charges filed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement Criminal Justice Standards and Training Commission, enter a final order finding that Respondent, Kalangie J. Serrano, violated Subsection 893.147(1), Florida Statutes, and, as a result, failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and that he be placed on probation for two years, be required to submit to drug testing, be enrolled in drug prevention education, and such other associated penalties as Petitioner deems appropriate. DONE AND ENTERED this 19th day of June, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 19th day of June, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kalangie J. Serrano 4340 Lauren Lane Titusville, Florida 32780 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
