The Issue Whether Petitioner was discriminated against in employment by reason of his race.
Findings Of Fact Petitioner was employed by the Hillsborough Corrections Institute on October 19, 1990 as a trainee and entered the Corrections Officer Academy (Academy) the following Monday, October 22, 1990. The Academy is run by Hillsborough Community College under the guidelines established by the Florida Division of Criminal Justice Standards and Training Commission. Completion of the Academy is a prerequisite for certification. Section 943.13, Florida Statutes. After successfully completing the Academy the trainees are promoted to probation correction officers for nine months and assigned to a correction facility. Petitioner, while in the Academy, reinjured a military service connected injury and was unable to attend and participate in the self-defense portion of the curriculum while it was given. He presented a doctor's certificate that he should avoid walking or running exercises for a prolonged period of time (Exhibit 4). Petitioner was advised more than once that he would need to take the self-defense portion of the Academy curriculum before he could be certified and that he had six months in which to take this portion of the training. At least two and possibly three classes were available to Petitioner during the six month period following the graduation of his class in which he could have taken the Self-Defense portion of the curriculum. Petitioner attended the graduation ceremonies with his class but he did not receive a certificate that he had completed the Academy. Immediately following the graduation ceremony Petitioner received the same 10% pay raise the other trainees received. Hillsborough Correction Institute (HCI) was not aware that Petitioner had not successfully completed the Academy until May 2, 1991. At this time the personnel manager at HCI accompanied by Major Berry went to the superintendent with the problem and recommended Petitioner's dismissal. With HCI laboring under the false assumption that Petitioner had completed the Academy and was eligible for certification, he had been allowed to work in the prison compound. Since only certified correctional officers are allowed to so work, the Institute was exposed to legal liability if any injury had occurred to a prisoner or a corrections officer and Petitioner had been involved in the incident. Effective May 6, 1991, Petitioner was terminated because he had not successfully completed the Academy within the time specified. Petitioner contends that two white correction officer trainees were treated differently than he was treated, but could testify only to what he had heard from other correction officers. The two trainees referred to by Petitioner were David Collins and a Ms. Duhamel. Respondent presented evidence (Exhibit 2) that Collins had been a corrections officer in another state. His application for employment at HCI was sent to the Florida Department of Law Enforcement (FDLE) for review of his training. FDLE advised HCI that Collins needed only 40 hours of additional training and he was enrolled at Hillsborough Community College. Subsequent to the completion of this training, FDLE found they had made an error and Collins needed an additional 40 hours of training. He was sent back to Hillsborough Community College for this training. Ms. Duhamel received work related injuries to her back while she was taking the self-defense training and was placed on Workers' Compensation for an extended period. She was subsequently certified after successfully completing all of the hours and courses required at the Academy. Petitioner presented no evidence that his race played any part in the decision to terminate his employment. Despite this lack of evidence from Petitioner, Respondent presented evidence that all trainees who do not complete the Academy are terminated in employment and cited four specific instances in which three of the dismissed trainees were white.
Recommendation It is recommended that a final order be entered dismissing the petition for relief from an unlawful employment practice filed by Christopher Hooks against the Florida Department of Corrections. DONE AND ENTERED this 10th day of November, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1992. COPIES FURNISHED: Lynne T. Winston, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Christopher Hooks Post Office Box 310623 Tampa, Florida 33602 Dana Baird, General Counsel Harry K. Singletary, Jr., Sec. Commission on Human Relation Department of Corrections Building F, Room 240 2601 Blair Stone Road 325 John Knox Road Tallahassee, Florida 32399-2500 Tallahassee, FL 32303 4149 Louis A. Vargas Margaret Jones, Clerk General Counsel Commission on Human Relation Department of Corrections Building F, Room 240 2601 Blair Stone Road 325 John Knox Road Tallahassee, Florida 32399-2500 Tallahassee, FL 32303 4149
The Issue The issue to be determined is whether Respondent violated section 626.611(14) or 626.621(8), Florida Statutes (2007), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the insurance industry in the State of Florida. Respondent is licensed as a variable annuity and health agent, a life agent, a life and health agent, a health agent, a legal expense agent, and an independent adjuster. She holds license number A107405, which is presently valid. Respondent was the neighbor of an elderly couple named Paul and Rose Weinberg. As their health declined, she assisted them with their financial affairs. Paul Weinberg was diagnosed with Parkinson's Disease, and Rose had medical issues that caused her to be infirm. Respondent's assistance became labor intensive and time consuming. She obtained a power of attorney from the Weinbergs to facilitate the handling of their affairs, and at some point her name was placed on at least Rose Weinberg's bank account and credit card. Paul Weinberg died about four years after Respondent began assisting the couple. After Paul's death, Respondent continued to provide assistance to Rose for an additional six- year period. She stopped working and spent her time taking care of Rose. Respondent testified that during this time, Rose started "paying" her for her efforts. These payments were not on a weekly basis, but made by Respondent periodically making a lump sum payment toward her own bills with Rose's funds. At some time after Paul's death, Rose was moved to assisted living facility. Respondent testified that as Rose's health declined and it was clear she would need more intensive care, she embarked on a Medicaid spend-down, in order to reduce the amount of Rose's funds so that she could qualify for Medicaid funding. Whether for this purpose or for some less altruistic motive, Respondent transferred $50,000 from a joint account she held with Rose to an account in her own name. Although Respondent claimed that the transfer of funds was performed pursuant to an agreement entered before Rose's health began to decline, she presented no written agreement of any kind to support her claim, and presented no explanation how this transfer of funds would have been permissible under federal law. She also presented no written agreement to support the statement that the payment of her bills out of Rose's funds was to compensate her for the assistance she provided to Rose. On December 28, 2007, the State Attorney for the Nineteenth Judicial Circuit in and for St. Lucie County filed an information against Respondent, charging her with third-degree grand theft in violation of section 812.014, Florida Statutes (2006); fraudulent use of a credit card, in violation of section 817.61, a third-degree felony; criminal use of personal identification information in violation of section 817.568(2)(a), a third-degree felony; and exploitation of an elderly or disabled adult while in a position of trust, in violation of section 825.103(1)(a) and (2)(b), a second-degree felony. Respondent hired T. Charles Shafer and his associate, Beth Allen, as counsel to represent her in the criminal proceedings. As part of their representation, there was some discussion of entering into a plea to resolve the criminal charges. During these discussions, Respondent inquired repeatedly whether any plea deal would have a negative effect on her insurance license. Mr. Shafer and Ms. Allen advised her several times to seek advice from someone specializing in regulatory matters to address this issue. However, in response to her concerns regarding her license, Ms. Allen called the Department of Financial Services to inquire about the ramifications of a nolo contendere plea. She presented the scenario as a hypothetical. Ms. Allen could not remember the name of the person to whom she spoke, and what she was told is in dispute. Ultimately, what she was told is not particularly relevant. After the telephone call, Mr. Shafer wrote Respondent a letter which stated in part: Dear Ms. Haber: I am in receipt of your September 11 e-mail correspondence to Ms. Allen. I understand your concern over how a plea and sentencing may affect your occupation, but as I advised in our last several phone calls, I do not know what collateral consequences such a sentence will have on your profession; I can only tell you with certainty how it will affect your status relative to being able to one day filing an action to seal your records in this matter. However, pursuant to your request, Ms. Allen found a telephone number on the website you provided. She called the Florida Department of Services help-line. She asked the person she spoke to what would happen to your license as a result of a no contest plea to a felony theft with a withhold of adjudication and probation. Their representative advised that since you already have a license, you would not be suspended or placed under review; however, it is your duty to notify the Bureau of Licensure of any law enforcement action, such as your current predicament. Please be advised that neither I nor Ms. Allen vouch for the accuracy of this information, and, as we have suggested repeatedly in past conferences, insist that you personally validate it. (Emphasis added.) To give the type of answer described in the letter would be contrary to Department policy. Whether or not the description of the phone call contained in the letter is accurate, given Mr. Shafer's express qualification and directive that the information be separately verified, it was unreasonable for Respondent to rely upon it. By her own admission, she took no action to independently verify the information in the letter. Respondent pleaded nolo contendere to one count of second-degree grand theft. Respondent met with her attorneys on a Sunday at a Dunkin Donuts restaurant before signing the plea agreement. At that time, counsel went over the plea agreement with her, line by line. Included in the plea agreement is the statement, "I understand a conviction of a crime may cause me to lose local, state or federal licenses and can prevent me from getting certain licenses. A conviction of a felony will cause me to lose the right to vote and my right to own or possess a firearm or ammunition." At the plea hearing on September 15, 2008, the trial judge questioned Respondent regarding her change of plea. In the plea colloquy, the following occurred: THE COURT: Okay. Please tell me your name. MS. HABER: Angela Haber. THE COURT: And how old are you? MS. HABER: Forty-two. THE COURT: And how far have you gone in school? MS. HABER: Some college. THE COURT: Okay. And you read, write and understand English? MS. HABER: Yes. THE COURT: Are you -- don't take offense at any of these questions, I ask them of everyone because sometimes I'll go through this and if you don't ask these questions someone will come back later and say, "I was under the influence of drugs and I don't understand English when I entered my plea." Even though it's clear that they were. So you understand English? MS. HABER: Yes sir. THE COURT: And you're not under the influence of alcohol or any illegal narcotics? MS. HABER: No sir. THE COURT: Okay. Are -- did -- did you fully read this plea agreement from beginning to end? MS. HABER: Yes. THE COURT: These are initials at the bottom of each page and a signature at the end? MS. HABER: Yes. THE COURT: And did you fully understand each and every provision including the rights you're giving up by entering this plea? MS. HABER: Yes. THE COURT: Okay. You are charged with second degree grand theft, that's a second degree felony, its punishable by up to fifteen years in prison, a ten thousand dollar fine or both. You are also charged with fraudulent use of a credit card, criminal use of personal identification and exploitation of elderly or disabled adult, position of trust. And those charges would be dropped or dismissed at the time of sentencing. But it's my understanding that you wish to enter a plea to count one, second degree grand theft. Is that what you wish to do? MS. HABER: Yes. * * * THE COURT: Are you entering this plea because you're guilty or because you feel it's in your best interest? MS. HABER: I feel it's in my best interest. THE COURT: Okay. And is there any objection by the defense to the court taking judicial notice of the complaint affidavit for factual basis? MR. SHAFER: No sir. THE COURT: And both sides stipulate there's a factual basis for the plea? MR. SHAFER: Yes sir, for the plea. MS. BALDREE: Yes sir. And we would add that additionally, that this offense occurred in Saint Lucie County. THE COURT: Ma'am, are you entering this plea freely and voluntarily? MS. HABER: Yes. THE COURT: Has anyone threatened you or forced you or coerced you to enter this plea? MS. HABER: No. THE COURT: Has anyone mistreated you or misled you to enter this plea? MS. HABER: No. THE COURT: Has anyone made any promises to you other than what's contained in this petition? MS. HABER: No. THE COURT: If they have you need to know they're not binding on the court. Have you had enough time to talk to your attorney? MS. HABER: Yes. THE COURT: Do you need more time to talk to your attorney now in private? MS. HABER: No. THE COURT: Are you satisfied in all respects with his advice and counsel? MS. HABER: Yes. * * * THE COURT: Do you understand you're giving up your right to appeal all matters relating to the judgment, including the issues of guilt or innocence? MS. HABER: Yes. THE COURT: Do you understand that if you are adjudicated it would make you a convicted felon and you would lose certain civil rights? MS. HABER: Yes. * * * THE COURT: Do you have any questions for your attorney or the court concerning anything about your case, this petition or these proceedings? MS. HABER: No. THE COURT: Understanding everything we just went over do you still want to enter this plea? MS. HABER: Yes. THE COURT: Okay. I will accept the plea. I find there's a factual basis for it. I find the defendant does not appear to be under the influence of drugs or alcohol at this time. She appears to be aware of the nature of the crime to which she has pled, the consequences, her legal rights and the plea recommendations. I find the plea is freely and voluntarily entered upon a knowing and intelligent waiver of rights. . . . Respondent was sentenced on November 14, 2008. At that time, adjudication of guilt was withheld. She was placed on probation for a period of ten years and ordered to make restitution to Rose Weinberg in the amount of $50,000. On April 17, 2009, Respondent filed a Motion for Post- Conviction Relief and to Vacate Judgment Pursuant to Rule 3.850, Fla. R. Crim. P. In the Motion, Respondent sought to withdraw her nolo plea, based upon ineffective assistance of counsel. The basis for her claim was counsel's failure to advise her that a nolo plea would have a negative effect on her professional licensing. On June 26, 2009, the Honorable Robert E. Belanger entered a detailed Order Denying Defendant's Motion for Post Conviction Relief. The Order states in pertinent part: Defendant claims that she is entitled to withdraw her plea because of her counsel's deficient performance, i.e., in providing affirmative misadvise concerning a collateral matter. This is not even a close call. The court finds the motion to be totally devoid of merit. * * * The defense stipulated to a factual basis for the charge, and the defendant acknowledged that by entering a plea, she was giving up any defenses to the offense charged. Any defenses were abandoned when she entered the plea. Stano v. State, 520 So. 2d 278 (Fla. 1988); Dean v. State, 580 So. 2d 808 (Fla. 3d DCA 1991). Significantly, the court conducted a detailed plea colloquy, asking the defendant the required questions to ensure that the plea was being entered freely, knowingly, intelligently, and voluntarily. Defendant, who was under oath, testified that she had signed the plea form and was aware of the waiver of her various rights. She further testified that she had sufficiently discussed the change of plea with her attorney and that no one had threatened her, coerced her or mislead her into entering the plea. She also confirmed that no one had made any promises to her, except those contained in the plea form. A plea conference is not a meaningless charade to be manipulated willy-nilly after the fact; it is a formal ceremony, under oath, memorializing a crossroads in the case. What is said and done at a plea conference carries consequences. . . . Respondent appealed the trial court's order. On April 13, 2011, the Fourth District Court of Appeal affirmed the trial court decision. Haber v. State, 59 So. 3d 123 (Fla. 4th DCA 2011). The Fourth District's mandate issued May 13, 2011. Respondent paid $10,000.00 toward the required restitution at the time of sentencing. On October 26, 2011, Respondent moved to have her probation terminated upon payment of $11,000.00 for restitution. On that same day, the trial court ordered that upon payment of the $11,000.00, the court would enter an order terminating Respondent's probation, and the balance of the amount owed by Respondent for restitution, i.e., $15,552.86, would convert to a civil judgment. Respondent paid the $11,000.00 plus court costs and on November 6, 2011, the court entered the Order Terminating Probation.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services enter a Final Order finding that Respondent has violated sections 626.611(14) and 626.621(8), and revoking Respondent's licenses and appointments issued or granted under or pursuant to the Florida Insurance Code. DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2012. COPIES FURNISHED: Donald E. Pinaud, Jr., Esquire Kattman & Pinaud, P.A. 4069 Atlantic Boulevard Jacksonville, Florida 32207 Robert Alan Fox, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue Should Petitioner impose discipline on Respondent in association with his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on May 19, 1984, and was issued Correctional Certificate No. 31730. On January 21, 1981, he had been issued Law Enforcement Certificate No. 31731. Finally, on September 18, 1997, Respondent was issued Instructor Certificate No. 207101. On May 7, 2002, Respondent was employed as a correctional officer at Hernando Correctional Institution (the facility) in Brooksville, Florida. He held the rank of sergeant. The facility has an area within its confines referred to as a control room. Within that control room are lock boxes containing keys. Those keys provide access to certain places within the facility. Only designated persons within the facility may open the lock boxes to obtain keys to gain access to the discrete areas within the institution. Other persons are not allowed to open the lock boxes to obtain the keys found in the lock boxes. On May 7, 2002, while in the control room, Respondent used channel lock pliers to manipulate the lock assembly on two separate lock boxes. Respondent was not entitled to access those lock boxes. The circumstances involving Respondent's attempt to access the lock boxes led to an investigation by the Department of Corrections Inspector General's Office. Inspector Cecil W. Rogers, II, an institutional inspector with the Department of Corrections was assigned to investigate the matter. As part of the investigation, Inspector Rogers interviewed Respondent using procedures consistent with the expectations of the interview process. In the interview Respondent was placed under oath before offering his responses. In the interview Inspector Rogers asked Respondent if the Respondent had attempted to unlock the lock boxes in any manner, or obtain entry into the lock boxes. Respondent replied that he did not enter the control room at the time he was accused of being there and did not try to access the boxes.
Recommendation Upon consideration of facts found and Conclusions of Law reached, it is RECOMMENDED that a final order be entered finding the violations of the statutes and rules and suspending the Respondent's Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate for 60 days. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 October, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bob Bishop, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 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
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the "[s]tipulated [f]acts" contained in the parties' Prehearing Stipulation,2 the following findings of fact are made: Respondent is now, and has been since February 18, 2003, certified as a correctional officer in the State of Florida. She holds Correctional Certificate Number 229286. 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 South Florida Reception Center (SFRC), a "transient institution for inmates that are [transferring] from one facility to another." Sergeant Shirley McLain is now, and was at all times material to the instant case, employed by the Department as a correctional officer and assigned to SFRC. Respondent and Sergeant McLain have known each other since the time they attended the correctional academy together. In August of 2005, Respondent was responsible for supervising inmates working on the "outside grounds" of SFRC, while Sergeant McLain oversaw the operations of the SFRC property room, where personal items taken from inmates are brought and stored until they are returned or other otherwise disposed of. Sergeant McLain "never supervised" Respondent. In August of 2005, Ricardo Bigio was an inmate at SFRC. Shortly after his arrival at the facility, he had a watch and chain confiscated from him. He was permitted to send these items home. Two days later, Sergeant McLain found Inmate Bigio in possession of another watch and another chain. Upon being told by Inmate Bigio, in response to her questioning, that he had obtained these items "through visitation," Sergeant McLain informed him, since these items were brought into the institution "illegally," they were "now contraband" and he could not have them "sen[t] . . . home." At the suggestion of a fellow inmate, Inmate Bigio approached Respondent and asked her to "speak to Sergeant McLain to see if she would let [him] send [this confiscated] jewelry home." During their conversation, Respondent mentioned to Inmate Bigio that "her dad needed a car." Inmate Bigio told Respondent that, if Respondent spoke to Sergeant McLain about his jewelry, he "would be able to send her to somebody [he knew in the used car sales business] to get a good deal on a car" for her father. Respondent agreed to help Inmate Bigio by speaking to Sergeant McLain about sending his jewelry home. Respondent and Inmate Bigio then went to Sergeant McLain's office, where Respondent asked Sergeant McLain if she would "let[] [Inmate Bigio] send this chain and this watch home," an act that that Respondent believed was within Sergeant McLain's power as the officer in charge of the SFRC property room. Sergeant McLain responded to Respondent's request in the negative. Respondent said, "Okay," and then left with Inmate Bigio. Respondent returned to Sergeant McLain's office with Inmate Bigio "off and on" for the next three or four days to repeat her request that Sergeant McLain allow Inmate Bigio to send his jewelry home. On each occasion, in response to the request, Sergeant McLain reiterated that the jewelry "was contraband and [therefore Inmate Bigio] could not send it home." On August 10, 2005, approximately a week after she had first raised the matter with Sergeant McLain, Respondent once again asked Sergeant McLain to permit Inmate Bigio to send his jewelry home. This time, in making her request, Respondent revealed her motivation for interceding on Inmate Bigio's behalf. She explained to Sergeant McLain that, if Sergeant McLain granted the request and allowed Inmate Bigio to send his jewelry home, Inmate Bigio would make the necessary arrangements with his "people [who] own[ed] a car lot" to enable Respondent to purchase for her father a $5,000.00 car for only $2,000.00. Respondent provided this explanation as to why she was taking up Inmate Bigio's cause in the hopes that Sergeant McLain's having this information would make Sergeant McLain more inclined to grant the permission Respondent was requesting on Inmate Bigio's behalf. Sergeant McLain was taken aback that Respondent would strike such a deal with an inmate. She advised Respondent, as she had in response to Respondent's previous requests, that Inmate Bigio would not be permitted to send his jewelry home.3 Sergeant McLain subsequently reported the incident to the SFRC assistant warden. Inspector Arlethia Clark with the Department's Inspector's General Office subsequently investigated the matter. As part of her investigation, Inspector Clark interviewed Respondent on November 17, 2005. Respondent was placed under oath for the interview. Respondent told Inspector Clark that Sergeant McLain, in describing her August 10, 2005, conversation with Respondent, had "twisted the story around." Respondent knowingly made the false claim that she had gone to Sergeant McLain merely to report the illicit offer that Inmate Bigio had made and to seek guidance from Sergeant McLain "as a supervisor" as to what to do, not to persuade Sergeant McLain to allow Inmate Bigio to send his jewelry home so that she would be able to purchase a car for her father at a discount (which, in fact, contrary to Respondent's sworn statement to Inspector Clark, was the actual reason she had gone to Sergeant McLain). Inspector Clark also interviewed Inmate Bigio and Sergeant McLain. Based on the findings of her investigation, Inspector Clark "found that there was bartering between, or an attempt to barter between," Inmate Bigio and Respondent.
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 Allegations One and Two and, based on these findings of guilt, revoke her certification. DONE AND ENTERED this 12th day of July, 2007, 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 12th day of July, 2007.
Findings Of Fact In his application for licensure dated September 6, 1990, Petitioner answered question 7 pertaining to conviction of a crime in the affirmative, and submitted an attached list showing: Hammond, Louisiana, February 1977. Possession of marijuana with intent to distribute. Guilty plea, one year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana: Guilty plea. One year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana and conspiracy to possess marijuana with intent to distribute. Ten year sentence to be served concurrently. Tallahassee, Florida, September 11, 1986. Failure to appear. Guilty plea. Five year sentence, to be served consecutively. Tallahassee, Florida, December 19, 1986. Possession of marijuana with intent to distribute. Guilty plea. Eight year concurrent sentence. I served a total of 61 months in federal prison of an aggregate 15 year sentence from March 27, 1986 to August 3, 1990. Petitioner's FBI rap sheet shows: Arrested 2/22/77 arrested and charged in Louisiana with possession of marijuana with intent to distribute. Arrested 11/4/77 Pensacola on charge of conspiracy to possess with intent to distribute marijuana. Sentence 60 months confinement, $15,000 fine. Arrested 3/27/86 on charge of failure to appear. Arrested 5/26/86 on charge of unlawful possession of marijuana. Sentence one year confinement. Arrested 11/21/86 on charge of possession with intent to distribute marijuana. Sentence 8 year confinement. Following his conviction on November 30, 1977, Petitioner was released on bail and failed to appear for sentencing. He remained a fugitive until he was apprehended on 3/27/86 and incarcerated in a federal correction institution. The 6/25/86 entry on the rap sheet relates to the 1977 convictions and five year sentence Petitioner failed to serve. Petitioner correctly included all convictions on his application for licensure. While serving his 15 year accumulated sentence, Petitioner decided to turn his life around. During his last three years in prison, Petitioner took college courses and correspondence courses in real estate (Exhibit 2). Petitioner received a three month credit on his presumptive parole date for superior program achievement; specifically: completed vocational training in electronics; completed an extension course in real estate appraisal; and completed an associate degree in real estate appraisal. Petitioner's sister, who testified in these proceedings, is a real estate broker and encouraged Petitioner to study for and enter the real estate field. While in federal prison, Petitioner received a Jaycees Presidential Award of Honor in June 1988 in acknowledgment of his support in community fund raising projects. Subsequent to his release from prison on August 3, 1990, Petitioner worked as an assistant in two real estate offices, served as a volunteer handler of search dogs used in law enforcement and search and rescue missions, worked with the guardian ad litem program and with project PET where he takes dogs into nursing homes to serve as temporary pets for elderly patients. Although Respondent is on five years probation and will be eligible for release from parole in 1993, he has complied with all terms of his parole, including the monthly payments on the fine assessed against him. Petitioner exhibited a sincere interest in working in the real estate field and has at least two real estate firms willing to employ him as a salesman once he is licensed.
Findings Of Fact The Parties The Department of Health and Rehabilitative Services (HRS) is an agency of the State of Florida with the responsibility to provide services to certain clients and the authority to contract for the provision of those services. Multi-Resources, Inc., (MRI) is a Florida corporation with an office in Sebring, Florida. The corporation provides behavioral treatment to persons with developmental disabilities referred to its programs by HRS. The corporation currently operates in HRS Districts VI, VII, and IX, including a facility in Orlando, in District VII, which serves residential clients in two homes under contract with HRS. The clients in that facility are the same clients who are to be served under the proposed contract which is the subject of this proceeding. ARA Devcon, Inc., (Devcon) has been incorporated in Florida since 1981. It currently serves 276 developmentally disabled individuals in residential cluster facilities. Eighty-four of these individuals are "dually diagnosed"; that is, they are retarded and also have mental disabilities which require intensive intervention. Devcon provides services to HRS clients through contracts with the agency. Pejus, Inc., (Pejus) is an Indiana corporation organized to provide human services to persons with special needs. It operates programs in northern Indiana and, through a separate Florida corporation, Community Opportunities, Inc., it operates residential group homes under contract with HRS in District IV. These group homes serve persons with dual diagnoses of mental retardation and mental illness with severe behavioral disorders. Wohlfarth Group of Homes, Inc., (Wohlfarth) is in the process of incorporating in the State of Florida, with an office in Deltona, Florida. It currently does business in New Jersey as Developmental Disabilities Association of New Jersey, Inc.. In New Jersey it provides services to developmentally disabled persons, which services include group homes and adult training programs. The Request for Proposals On January 3, 1991, HRS District VII Administrator, Paul Snead, approved the Request for Proposals (RFP) and appointment of a 5-person selection team for RFP #DS-91-01, for specialized group homes for 24 District VII clients who are dually diagnosed or have severe behavior problems. (Joint Exhibit #3, MRI Exhibit F) The deadlines in the RFP provide for release of the RFP on January 18, 1991, a bidders' conference on January 28, 1991, and responses to the RFP to be received by the department by 3:00 p.m. on February 15, 1991. (Joint Exhibit #3) The RFP describes briefly the services to be provided with programmatic and other special requirements. Under "General Information", the RFP provides that the contract will be a fixed-price contract, with a line-item budget to be presented for the contract period of October 1, 1991-September 30, 1992, October 1, 1992-September 30, 1993, and October 1, 1993-September 30, 1994. "All costs will be reviewed to ensure that the costs are allowable and 'reasonable and necessary'". (Joint Exhibit #3, p.5) The instructions in the RFP include the following: How to Submit a Proposal Each copy of the proposal must include a Title Page which contains the following information: RFP number Title of proposal; Bidder's name; Organization to which proposal is submitted; Name, title, phone number and address of person who can respond to inquiries regarding the proposal; and, Name of project director (if known). All proposals should include: (Attachment XI) The project objectives as seen by the bidder; A detailed explanation of how the services will be provided; and, An operational plan which lists the activities to be conducted to accomplish each objective, and completion dates. The proposal should include: (Attachment XI) A table of organization, indicating how the project staff fit into the total agency, and how each member of the project staff relates to the other; A synopsis of corporate qualifications, indicating ability to manage and complete the proposed project; Evaluations of projects similar to the one proposed in the RFP (previous experience is desired but not required); A copy of the most recent financial statement or audit; An explanation outlining the staff who will provide the service, their qualifications and their number; and, Complete the Administrative Assessment of Potential Providers Checklist (Attachment X) and return it with the response to the RFP. The bidder must deliver the proposal packets either by hand or certified mail in a sealed envelope marked "Bid RFP #DS-91-01". In order for the bidder to receive proof of delivery they must request a receipt showing the time and date of delivery or mailing. j. Number of Copies Required The bidder will be required to submit an original and 2 copies of the proposal. At least one copy of the proposal submitted to the department must contain an original signature of an official of the provider agency who is authorized to bind the provider to the proposal. (Joint Exhibit #3, pp. 7, 8) The RFP describes "other required information" to include a Department of General Services acknowledgment form, a "statement of no involvement" form (certifying that the bidder was not involved in developing the RFP and other related matters), and a sworn statement under Section 287.133(3)(a), F.S. on public entity crimes. (Joint Exhibit #3, p. 9). Paragraph B.3.a. of the RFP requires that the proposal include "...a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract". (Joint Exhibit #3, p. 10) Paragraph C. of the RFP provides: C. Proposal Evaluation Criteria and Proposal Rating Sheet The criteria by which the response to RFP #DS-91-01 will be selected is found in Attachment IX. The proposal rating sheet is a list of the evaluation criteria and specific indicators used to assess the degree to which the bidder's response meets those criteria. Prior to February 20, 1991, each proposal will be reviewed by the Proposal Selection Team and points awarded for each section based on the responses given. The selection team will evaluate the quality and completeness of the bidder's response. The values awarded for each response will be tabulated and a minimum score established below which proposals will not be considered. (Joint Exhibit #3, pgs. 10, 11) Attachment IX of the RFP, (Joint Exhibit #3) is the proposal rating sheet for RFP #DS-91-01. It has spaces to be filled in for the title of the proposal, the bidder and the reviewer. Total possible points is 646, and a minimum of 323 points is required. Part A of the Proposed Rating Sheet provides: Part A: MINIMUM PROPOSAL REQUIREMENT - FATAL ITEMS (A. "no" in any of the following requirements will automatically remove the proposal from the further consideration.) Circle Appropriate Responses The proposal contains an original YES NO signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement. The proposal for a cost-reimbursement YES NO project includes a line-item budget with justification. The proposal for a fixed rate project includes justification for the fixed rate. Is the population to be served YES NO the target population specified in the RFP? Was the District 7 application Packet YES NO used to respond to the RFP? The proposal includes a completed and YES NO signed Public Entity Crime Form, PUR 7068. (Joint Exhibit #3) A total of 6 possible points is allowed for submittal of a bound proposal with required number of copies, all mandatory attachments, and sequentially numbered pages. Two questions on the proposal rating sheet yield a total of 20 possible points for the bidder's understanding of why the project is necessary and what the project is intended to accomplish. (Part C) Six questions yield a total of 300 possible points on the bidder's response to RFP specifications. (Part D) Six questions yield a total of 120 possible points on the bidder's organizational capability. (Part E) Four questions yield a total of 200 possible points for the bidder's budget and financial information. (Part F) (Joint Exhibit #3, Attachment IX) The Review Process Raymond Granston has been employed by the Department of Health and Rehabilitative Services since 1986, as a case manager, and most recently as a human services program specialist in the HRS Developmental Services Program Office. He drafted RFP #DS-91-01, handled the advertisement and solicitation process, and led the 5-person selection team in the evaluation of responses. In addition to Granston, the team included Sandy Pruette, the Residential Services Director; Helen Tasher, a member of Granston's staff; Sandra Browdy, Licensure Specialist; and Paula Bowser, Grants Specialist. Four timely responses to the RFP were received: Pejus, MRI, Devcon and Wohlfarth. After the proposals were opened, Granston gave one copy of each to Paula Bowser. The original and remaining copy of each were retained in Granston's office for his and the other review team members' access. Each member took advantage of that access, and approximately February 26, 1991, the review committee met as a group, with Granston as chairperson. The group spent two or three hours together discussing the proposals and ascribing numbers from the rating sheet. Neither the Pejus, nor Wohlfarth proposals were rated, however, as "fatal" items were found. For the two remaining proposals, Raymond Granston kept notes of scores on a legal pad. The actual rating sheets for MRI and Devcon were not completed until sometime after the notice of intended award was sent, but the scores on Granston's notes were the basis for the notice. Those scores were a total of 534 for MRI (although the rating sheet reflects a computation error and total of 551); and a total of 618 points for Devcon. (Joint Exhibit #11 and 12) As described by the team members, the scoring process was a group effort, rather than the result of averaging individual members' scores for the proposals. Individual score sheets were not used. The Wohlfarth proposal was not scored by the review committee as the committee determined that paragraph A.1., the first "fatal" item, disqualified it from further review. That is, the committee felt that the proposal did not include "...an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of no involvement." (Joint Exhibit #3, Attachment IX) The review committee determined that the Pejus proposal had two "fatal" items: paragraph A.1., described above, and paragraph A.2. requiring justification in the budget. Determination on this latter item was based on lack of narrative pages in the budget. The Pejus proposal also had a couple of typographical errors where the service area was described as District IV, rather than District VII, but those errors were not considered by the committee to be "fatal" to its proposal. The agency maintained deliberative notes for the proposals submitted by MRI, Devcon and Wohlfarth, although these were not produced at hearing or offered into evidence. HRS, as stipulated by counsel, has no records which confirm any evaluation or rejection of the Pejus proposal. (Pejus Exhibit #1) The Bid Protest In a letter dated March 8, 1991, Ross Wingo, Jr., President of MRI, informed Ray Granston of his formal protest of intended contract award in RFP #DS-91-01, and outlined the bases for the protest. Most of MRI's protest involves argument that scores awarded for specific items are improper. For example, Devcon did not include a separate narrative statement for each budget item. Instead, a brief explanation of the cost was included on the face of the budget form. Devcon received a score of 9 out of 10 points; MRI received a full 10 points and included a separate narrative statement. The RFP paragraph E.5. requires a "statement certifying financial capability". Devcon did not include a separate signed statement, but rather provided the following at page 84: ARA Devcon has the financial capability to sustain this project for a minimum of 60 days or until the first reimbursement for services rendered is received from HRS. Further evidence of our financial capability is documented in the attached audit. (Joint Exhibit #2) Devcon received 9 out of 10 possible points for this. MRI received the full 10 points. A separate signed statement is clearly required in the RFP for the "statement of no involvement", but the RFP does not clearly require a separate signed statement of financial capability. Devcon's signature on the proposal itself constitutes acceptance of the entire proposal, including the statement described above. Each of the four proposals is voluminous, with narrative statements and lengthy attachments describing various financial, personnel or direct services aspects of the respective proposed program. Devcon's proposal is approximately 215 pages; MRI's is neatly bound, well- organized and comprises 395 pages. The narrative statements provided by Devcon are much briefer, but still include the essentials required by the RFP. It is obvious that the scores ascribed by HRS' review committee were not based simply on quantity of verbiage. Several of MRI's points on protest relate to the perceived quality of its detail as opposed to the sometimes bare-bones statements by Devcon. Scoring for many items was plainly subjective, but not plainly erroneous. Nor was it error, as contended by MRI for the review team to lack a certified behavior analyst or other expert in the direct delivery of services to developmentally disabled clients. Nothing in the RFP nor the procedural manuals of HRS require such expertise in review team members. HRS Manual 75-2 requires a selection team of at least three employees who have experience and knowledge in the program area and service requirements. (Joint Exhibit #9, p. 5-23) At least three members of the team had that experience and knowledge. One member, Paula Bowser, is a grants specialist for HRS developmental services and concentrated on the financial aspects and budget presentations in the proposals. Another member, Sandra Browdy, has 19 years employment experience with HRS, and as a human services program analyst/licensing representative is familiar with the agency's standards for service delivery and the evaluation and survey of service providers. It is impossible to determine that the review by the Committee was so cursory that the scores ascribed to Multi-Resources and to ARA Devcon's proposals are invalid. It is obvious, however, that the Committee missed certain documents in the Pejus and Wohlfarth proposals or erroneously stated the reason for failure to score those proposals. Joint Exhibit #5 is the exhibit examined by the parties at the hearing and was stipulated in evidence as the Wohlfarth proposal. (transcript p. 380) According to Raymond Granston, the Wohlfarth proposal was rejected for lack of an original signature by an authorized agency official agreeing to the terms and conditions of the contract and the statement of noninvolvement. In response to a specific question from the Hearing Officer, Granston stated the problem was not that there was no original signature, but rather that the statement is not there. (transcript, p. 504) The RFP, as cited in paragraphs #10 and #11, above, actually references two separate statements, although the two are addressed together on the RFP rating sheet. James Casale is identified throughout the Wohlfarth proposal as the Project Director. Marion Wohlfarth, President of Wohlfarth, is identified on the application for funding form as the official authorized to sign the contract. James Casale's name and signature appear on the Department of General Services Request for Proposal Acknowledgment form. That form includes this language "I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements." (Joint Exhibit #5 - unnumbered pages) James Casale's name and signature as authorized representative appear on the "Statement of No Involvement" form in the Wohlfarth proposal. Attachment V of the RFP is the HRS standard contract. Wohlfarth's proposal includes this contract form, signed by James Casale, Project Director for Wohlfarth Group of Homes, Inc. The required documents are found in the Wohlfarth proposal, but none of the signatures are originals. (Joint Exhibit #5) As admitted by Ray Granston, there is no specific form in the RFP that the proposer was to execute to state it would agree to the terms and conditions of the contract. (transcript, p. 503) By signing the contract itself, Wohlfarth apparently intended to agree to its terms and conditions, but the signature is not that of Marion Wohlfarth, the person authorized to sign the agreement. The Pejus proposal was stipulated into evidence by the parties as Joint Exhibit #4. (transcript, p. 380) This exhibit includes a cover letter signed by Ernest Beal, Jr., President of Pejus, Inc.. It also includes a bound volume, which is the body of the proposal, and a supplement to the proposal that was faxed to Raymond Granston on February 15, 1991. The supplement includes Ernest Beal's signature on the Department of General Services Request for Proposal Acknowledgment Form and a separate "Statement of No Involvement" Form signed by Ernest M. Beal, Jr. (Joint Exhibit #4) None of these are original signatures. There is no evidence of whether the fax was received by the 3:00 p.m. deadline. A follow up mailed version was stamped "received" by the agency on February 18, 1991. (Joint Exhibit #4) The Pejus Proposal was also not evaluated because it lacked budget justification. See paragraph #21, above. The proposal rating sheet does not require a narrative, but rather for a fixed-rate project such as this it requires "justification for the fixed rate". (Joint Exhibits #11 and #12) Pejus' proposal includes a detailed line-item budget on the forms provided in the RFP packet. Explanations, where necessary, are found in the line-item budget. (For example, see Attachment D1, pp. 4.3, 4.13, 4.19, 4.25 and 4.32., Joint Exhibit #4) HRSM 75-2 is the agency manual which provides procedures for HRS' procurement and contract management. It requires that prospective members of the selection team complete a conflict of interest questionnaire (Appendix J) to ensure that no team member has any conflict of interest that would interfere in selection of a contractor. (Joint Exhibit #9, p. 5-23) It does not provide when the form must be completed unless the team member participates in RFP development, in which case the form must be completed prior to that participation. Ray Granston complied with that requirement. Four of the five review committee members completed the questionnaire. (MRI Exhibits A-E) Appendix J, the questionnaire form, was amended effective November 1, 1990, and no longer requires a sworn statement. (Joint Exhibit #9) The manual requires that the selection team evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. It does not require, as suggested by Multi-Resources, that the evaluation sheets be completed by each reviewer or that the sheets be maintained. Summary of Findings The review process itself was informal and poorly documented, although it substantially complied with the requirements of the RFP and with the agency's procedures manual. From the evidence presented, the ultimate results of the review are appropriate, even though the witnesses were thoroughly confused as to the specifics regarding rejection of the Pejus and Wohlfarth proposals. The unclear requirements of the RFP as to forms and certifications thought missing from the Pejus and Wohlfarth proposals contributed to that confusion. The RFP requirements were not protested, however, and among the four providers who submitted proposals only MRI attended the advertised bidders conference. (Joint Exhibit #8)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing Multi-Resources, Inc., petition and awarding the contract in RFP #DS-91-01 to ARA Devcon, Inc. DONE AND RECOMMENDED this 16th day of August, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific treatment of the findings of fact proposed by MRI and Wohlfarth. Although it was substantially late, Wohlfarth's submittal was considered. Its consideration does not alter the outcome of this proceeding. Proposed Findings of Fact Submitted by MRI Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 6., except that the manual does not require a 5- person team. Rejected as contrary to the weight of evidence. 7.-9. Adopted in paragraph 19. Rejected as contrary to the evidence. Adopted in paragraph 32. Rejected as immaterial. 13.-16. Adopted in summary in paragraph 32. 17.-20. Rejected as immaterial, and, as to the requirements of HRSM 75-2, contrary to the evidence. 21.-23. Addressed in the preliminary statement. 24.-25. Adopted in paragraph 19. Adopted in paragraph 17. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 33.-35. Rejected as immaterial. Adopted in paragraph 19. Rejected as unclear. Adopted in paragraph 19. 39.-42. Rejected as contrary to the evidence. 43. Rejected as unnecessary. 44.-45. Rejected as contrary to the evidence. 46.-47. Rejected as immaterial. 48. Adopted in paragraph 19. 49.-50. Rejected as unnecessary. 51. Adopted in the conclusions of law, in substance. 52.-54. Rejected as contrary to the evidence. 55. Rejected as unnecessary. 56.-59. Rejected as argument or conclusion, rather than findings of fact. Proposed Findings of Fact Submitted by Wohlfarth Adopted in paragraph 7. Adopted in paragraph 18. Adopted in paragraph 17. Rejected as contrary to the evidence. 5.-8. Rejected as immaterial. Rejected as contrary to the evidence. Adopted in paragraph 20. Rejected as contrary to the evidence. Rejected as unsubstantiated by competent evidence. 13.-16. Rejected as argument or conclusions, rather than findings of fact. COPIES FURNISHED: James Sawyer, Jr., Esquire HRS-District 7 Legal Office South Tower, Suite S-827 400 W. Robinson Street Orlando, FL 32801 Ross Wingo, Jr., Esquire Multi-Resources, Inc. 2555 US 27 South Sebring, FL 33870 ARA Devcon, Inc. Attn: Linda Mabile 2121 Killearney Way, Ste. F Tallahassee, FL 32308 Wohlfarth Group of Homes, Inc. Attn: Fred Wohlfarth 2301 Whitehorse Street Deltona, FL 32738 Ernest M. Beal, Jr., Esquire Pejus, Inc. 9025 Coldwater Rd., Ste. 300 Fort Wayne, IN 46825 John Liguori, Esquire P.O. Box 1051 Bartow, FL 33830 John Slye, General Counsel HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk HRS 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue What relief should the Florida Commission on Human Relations provide Petitioner to remedy the unlawful employment practice that Respondent admits that it committed by refusing to further consider Petitioner's application for employment as a correctional officer once it learned that Petitioner is an insulin-dependent diabetic?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner's Employment at the South Florida Reception Center Petitioner previously worked full-time as a Correctional Officer I at the State of Florida Department of Corrections' (DOC's) South Florida Reception Center, a maximum security facility that houses convicted felons. Petitioner and his coworkers at times were asked to work double shifts. On several occasions, Petitioner was threatened with disciplinary action when he refused to work a second shift immediately following the completion of his regularly assigned shift. Prior to the expiration of his probationary period, Petitioner was advised that he was going to be fired. Petitioner requested, and was granted permission by the Superintendent of the facility, the opportunity to resign in lieu of termination. Petitioner resigned his position effective June 27, 1989. Petitioner's Application for Employment with Respondent In October of 1988, while still employed by DOC, Petitioner applied for a Correctional Officer I position with Respondent. Respondent's official job description for the position describes the nature of the work performed by Correctional Officer I's as follows: This is routine security work in maintaining order and discipline among prisoners held in County correctional facilities. Employees in this class are responsible for receiving and controlling prisoners, preventing escapes and enforcing departmental rules and regulations on an assigned shift at a County correctional facility. Duties include maintaining various records on prisoners, supervising work details, transporting prisoners to a variety of medical or correctional institutions, and ensuring the proper discharge of prisoners. Work occasionally involves an element of personal danger during emergencies and in controlling potentially violent prisoners. Duties are performed in accordance with established departmental regulations and security procedures. Supervision is received from a superior officer who reviews work for compliance with established rules and regulations. These duties are similar to those performed by correctional officers who work at the South Florida Reception Center. There was a delay in the processing of Petitioner's application for employment. On April 12, 1990, Iliana O. Garcia, a Personnel Specialist 2 with Respondent, sent Petitioner a letter, the body of which read as follows: We wish to take this opportunity to thank you for placing your application for the position of Correctional Officer 1 with our Department. The time and effort you devoted to your pursuit of this position is sincerely appreciated, however, at the present time, we regret that we are unable to consider your application further. Many exceptional candidates are seeking limited number of positions and this creates a very competitive situation. Please be assured that our decision in your case was based on very careful consideration of your application and qualifications in direct comparison with all others seeking the position and was not a judgment arrived at lightly. Thank you again for your demonstrated interest in our Department, and we wish you success in your endeavors. On May 9, 1990, Louvenia Lee, the Commander of Respondent's Human Resources Bureau, sent Respondent a follow-up letter explaining in greater detail why Respondent was no longer being considered for the position for which he had applied: On February 26, 1990 you were scheduled for a physical examination at Mt. Sinai Medical Center. This exam was another step in the hiring process for a Correctional Officer. However, on the basis of the physical exam, the results were disqualifying. Therefore, your application with the Corrections and Rehabilitation Department was discontinued. The disqualifying results are in accordance with the physical standards set forth in the California Commission on Peace Officer Standards and Training, Chapter IX-1. These standards are utilized by other law enforcement agencies in Metropolitan Dade County. Thank you again for your demonstrated interest in our Department and we wish you success in your endeavors. If I can be of further assistance, please contact me at 547-7052. The results of the physical examination that Petitioner had taken were "disqualifying" because they had revealed that Petitioner was an insulin- dependent diabetic. Lost Earnings Had Petitioner been selected to fill the position for which he had applied, he would have had to have first undergone four months of academy training, starting in late July or early August of 1990, before assuming the duties of a Correctional Officer I. He would have received a stipend of $400 for each month that he was in training. Had Petitioner successfully completed his academy training, he would have been placed on the payroll as a Correctional Officer I on December 3, 1990. Had Petitioner remained on the payroll as a Correctional Officer I from December 3, 1990, to January 3, 1993, 3/ he would have earned a total of $54,142.22 ($47,367.16 for the pay periods reflected on Petitioner's Exhibit 7; $804.83 for the two bonus payments reflected on Petitioner's Exhibit 7; $932.86 for the January 21, 1991, through February 3, 1993, pay period; $972.45 for the March 30, 1992, through April 12, 1992, pay period; and $4,064.92 for the four pay periods immediately following the October 26, 1992, through November 8, 1992, pay period). Mitigation At the time he learned that he was no longer being considered by Respondent as a candidate to fill the Correctional Officer I position for which he had applied, Petitioner had applications for employment pending with two other prospective employers, the City of Hollywood and the Metro Dade Police Department. Both applications were for law enforcement officer positions. In August or September of 1990, Petitioner was informed that neither the City of Hollywood nor the Metro Dade Police Department would be offering him a position. The City of Hollywood advised him that the position for hich he had applied had been filled by another of the over 100 applicants for the position. The Metro Dade Police Department told Petitioner that it could not hire him because he was an insulin-dependent diabetic. Some time shortly after receiving his rejection notice from Respondent, Petitioner applied for a correctional officer position with the Broward Sheriff's Office. He did not get the position. The explanation that he was given was that he had failed the polygraph test he had taken. At the outset of the 1990-1991 school year Petitioner began working as a substitute teacher for the Dade County School Board. He continued working as a substitute teacher during the remainder of the 1990-1991 school year, as well as the following school year. The work was sporadic. Frequently, he would not know until the morning of his teaching assignment that he had the opportunity to substitute teach that day. 25. In 1990, 1991 and 1992, Petitioner earned $694.00, $2,212.50 and $2,360.00, respectively, working as a substitute teacher for the Dade County School Board. In 1992, Petitioner also worked for Publix Super Markets, Inc. (hereinafter referred to as "Publix). His last day of work for Publix was August 14, 1992. Petitioner earned $2,063.78 working for Publix in 1992. From the date he was informed that Respondent had rejected him for employment until January 3, 1990 (hereinafter referred to as the "back pay period"), Petitioner was not otherwise gainfully employed, nor did he, with the exception noted above, seek other gainful employment. During the back pay period, there were various advertised openings for correctional officers at the South Florida Reception Center (hereinafter referred to as the "Center"). These positions offered considerably less pay than Petitioner would have received had be been hired by Respondent. Furthermore, the working conditions at the Center were far inferior to those he would have experienced working for Respondent as Correctional Officer I. Petitioner did not apply for any of these advertised positions because he reasonably believed that to do so would be an exercise in futility given that he had been constructively discharged in June of 1989, from a similar position at the Center. Attorney's Fees and Costs On March 25, 1992, after the Executive Director of the Commission had issued a Notice of Determination: Cause and conciliation efforts had failed, Petitioner executed the following written agreement to retain the law firm of Simon, Schindler and Sandberg, P.A., to represent him in the instant matter: I, the undersigned, do hereby retain and employ the law firm of: SIMON, SCHINDLER & SANDBERG, P.A. 1492 South Miami Avenue Miami, Florida 33130 as my attorneys to represent me, DONALD C. FERRARO, in the petition now pending before the Florida Commission on Human Relations. I fully understand that the fee is based upon an hourly rate of $250.00, which I am obligating myself to pay. I also agree to pay my said attorneys the sum of $100.00 for out-of-pocket expenses. You are authorized to pay or incur liability for all expenses . . . If bills are not paid when due, or a mutually agreeable payment schedule is not made and adhered to, I agree that my attorneys may withdraw as my counsel in any proceeding in which they represent me. Also I agree to bear the cost of collection, including a reasonable attorney's fees, and all other costs. I understand that I will be billed periodically both as to expenses and attorney's fees, and fully agree to pay said bill promptly upon receipt of same. In addition to any other lien contemplated hereunder, we are given a lien on the claim or cause of action, on the sum recovered by way of settlement, and on any judgment that may be recovered, for fees as well as any fund we may have advanced on your behalf for costs in connection with the cause of action. You agree that we have all general, possessory, or retaining liens, and all special or charging liens, known to the common law. If we use the services of an attorney to enforce the terms of this agreement, you agree to pay, in addition to all other sums due us, a reasonable attorney's fee for said enforcement. I further agree that you shall have the right to withdraw from my case: (a) If I do not make the required payments pursuant to this agreement; (b) if I have misrepresented or failed to disclose material facts to you; or (c) if I fail to follow your advice. In any of the foregoing events, I agree to execute any such documents permitting you to withdraw. The Attorney is an officer of the court and is bound by the rules regulating the Florida Bar. The client acknowledges and understands that while an attorney accepts this employment and promises to render professional legal services to the best of his ability during the continuation of this employment, that the attorney makes no warranties, representations or guarantees regarding the favorable outcome, result or successful termination of the representation and that this Retainer Agreement is not "contingent" thereon. The client agrees to fully cooperate with the attorney; to do nothing which would compromise the attorney's professional ethics; and not to request or require the attorney to do anything in violation of the Rules of Professional Conduct. If the client has misrepresented or failed to disclose any material facts, refuses to follow the attorney's advice, or fails to be available as necessary for preparation, conferences, depositions, hearings or other court proceedings, the attorney may withdraw from representation with leave of court. I acknowledge that you have made no representations or guarantees concerning the outcome of this case. I agree to the above terms and conditions of this Retainer Agreement and further acknowledge that I have received a copy thereof. Pursuant to this retainer agreement, the law firm of Simon, Schindler and Sandberg, P.A., (hereinafter referred to as the "Firm") provided Petitioner with legal representation in this matter. Roger J. Schindler, Esquire, a name partner in the Firm, was the most senior of the Firm's attorneys who worked on Petitioner's case. Schindler is a Florida-licensed attorney who has been practicing law in this state since the spring of 1970. He has litigated numerous civil rights actions. Schindler's hourly fee is $250.00. Through November 11, 1992, Schindler had reasonably spent 49.00 hours performing various tasks in connection with the instant case for which Petitioner has been billed $12,200.00 based upon a reasonable hourly fee of $250.00. Through November 11, 1992, Joe Constant, a Florida-licensed attorney and one of the Firm's associates, had reasonably spent 16.20 hours performing various tasks in connection with the instant case for which Petitioner has been billed $2,673.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, another of the Firm's associate attorneys had reasonably spent one hour working on legal research done in connection with the instant case for which Petitioner has been billed $165.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, a law clerk working for the Firm had reasonably spent 11.80 hours performing research-related tasks in connection with the instant case for which Petitioner has been billed $885.00 based upon a reasonable hourly fee of $75.00. The Firm has also billed Petitioner a total of $368.22 for costs reasonably incurred through November 11, 1992, in connection with the instant case. Through November 11, 1992, the Firm had billed Petitioner a total of $16,391.22 ($15,923.00 for attorney's fees and $368.22 for costs), but had not received any payments from Petitioner, notwithstanding that, under the retainer agreement, he was responsible to pay the Firm this entire amount regardless of the outcome of the instant case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order (1) finding that Respondent committed the unlawful employment practice alleged in Petitioner's Petition for Relief, (2) prohibiting the practice, (3) awarding Petitioner back pay in the amount of $55,742.22, together with prejudgment interest thereon at the statutory rate of 12% per annum, (4) awarding Petitioner reasonable prehearing attorney's fees and litigation costs in the amount of $16,391.22 ($15,923.00 for fees and $368.22 for costs), and (5) awarding Petitioner reasonable attorney's fees and litigation costs for work performed, and costs incurred, by the Firm in connection with this case after November 11, 1992, in an amount to be determined by agreement of the parties or, in the absence of such agreement, by subsequent Commission order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1993.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate (Department), is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Jeffrey D. Ahl, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0155081. The last license issued was as a broker-salesperson, c/o Data Pak Systems & Services, Inc., 1050 South Federal Highway, Delray Beach, Florida 33483. On September 12, 1991, respondent was found guilty of eleven counts of lewd assault, a second degree felony, in violation of Section 800.04(1), Florida Statutes. The Circuit Court of Palm Beach County, Florida, adjudicated the respondent guilty on each count and committed the respondent to the Palm Beach County Jail for a term of 364 days, followed by a term of probation of 10 years. Notwithstanding his conviction on September 12, 1991, it was not until March 13, 1992, that respondent, through his attorney, informed petitioner of his conviction of the aforesaid felony. According to respondent, whose testimony is credited, the myriad of personal problems that befell him during this time period, including the remorse he was suffering, his divorce, a foreclosure, and his conviction, preoccupied his mind such that he overlooked his obligation to notify petitioner upon his conviction. Notably, respondent did not practice such profession following his conviction, and upon receipt of the renewal notice for his broker's license immediately recognized his oversight and had his attorney promptly inform petitioner of his conviction. Respondent served eight months and one week of his 364-day sentence in the Palm Beach County Jail, and was released from custody in May 1992. Currently, pursuant to the court's commitment order, respondent is on probation for a term of 10 years, the first year of which he is under community control. So controlled, respondent is required to report to his probation officer every Monday and secure approval of his weekly schedule of activities. Except for work, church and two hours of shopping each week, respondent is confined to his residence. Following successful completion of community control, respondent will be on a more relaxed form of probation, with monthly reporting to his probation officer. The court's commitment order further required that respondent continue psychological/psychiatric treatment, pay any medical expenses for his daughter's psychological/psychiatric treatment, and remain current on his child support payments. Respondent has duly abided by such obligations. The offense for which respondent stood convicted involved the touching and fondling of his daughter during times when he believed her to be asleep. Such activity occurred during the period of time she was 9 to 13 years of age, and ceased in approximately 1986, when respondent realized his daughter knew what was occurring. Disclosure of his activities apparently occurred in September 1990, during the course of his divorce proceedings. Upon disclosure of what had occurred, respondent was referred by the Department of Health and Rehabilitative Services to Helen Bush, a marriage, family and sex therapist, for counseling. Since such initial referral in September 1990, respondent has been regularly and responsibly counseled through Ms. Bush, except for that period of time in which he was incarcerated. In the opinion of Ms. Bush, which is credited, respondent suffers from a psychological disorder, regressed pedophilia, which, precipitated by stress, was the cause for his misconduct towards his daughter. Such disorders are treatable and where, as here, the offender is genuinely remorseful about what occurred, has the motivation to rehabilitate himself, and the support of his family, the likelihood of respondent being successfully treated is great. Currently, respondent has remarried, and continues to fulfill his responsibilities to continue treatment and to remain current in his support obligations. It is respondent's desire to once again practice as a real estate broker so that he might reasonably support his new family, as well as remain current with his obligations, and he would like to associate himself with William W. Harris, another licensed real estate broker. Mr. Harris testified at hearing, is aware of respondent's conviction, and is most amenable to respondent being associated with his office. Considering the quality of proof offered in this case, it is found that, notwithstanding respondent's conviction of a crime involving moral turpitude, respondent possesses the requisite honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing required for licensure as a real estate broker. In reaching such conclusion the seriousness of the offense with which respondent stands convicted has not been overlooked; however, neither has the fact that the conduct which precipitated such offense had its genesis in a psychiatric disorder that is treatable and that respondent is currently experiencing success in such treatment. Under such circumstances, respondent's conviction does not detract from the conclusion that he possesses those worthy attributes of honesty, trustworthiness and fair dealing the public is entitled to expect when dealing with a real estate broker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating Section 475.25(1)(f) and (p), Florida Statutes, not guilty of violating Section 475.25(1)(n), Florida Statutes, and imposing the penalty set forth in paragraph 18, supra. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of September 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September 1992.
