The Issue The issues in this case are whether the Respondent, by committing the felony of armed trespass while employed as a deputy sheriff, failed to fulfill his duties and responsibilities as an employee of the Petitioner, and, if so, whether the termination of the Respondent's employment was consistent with applicable disciplinary policy.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a deputy sheriff. The Respondent had been employed for 12 to 13 years as a law enforcement officer prior to his employment with the Petitioner. He was employed by the Petitioner for more than six years prior to the termination at issue in this proceeding. In September 2009, two undercover law enforcement officers, one of whom was the Respondent, went from a public alleyway through a privacy fence and into the private backyard property of a Pinellas County citizen. The entry occurred at night. The alley and backyard area were unlit. The Respondent was dressed in shorts and a t-shirt and was armed with a gun. The officers had no search warrant authorizing their entry onto the private property. The Respondent's entry into the private backyard was an act of trespass. The commission of a trespass while armed constitutes a third degree felony. The Respondent did not report the trespass to any superior officer within the Petitioner's chain of command. The Respondent has asserted that he was merely following the other officer's lead on the night when the trespass occurred and did not think that he had acted improperly. During a deposition for an unrelated criminal case, the Respondent was questioned about whether he had observed another officer engage in a similar trespass. The Respondent resisted answering the question, sought legal advice from an assistant state attorney, and then declined to answer the question. Even after being questioned about the issue during the deposition, the Respondent still failed to report the incident to any superior officer within the chain of command. After a complaint of misconduct was filed against the Respondent, the Petitioner commenced an administrative investigation. During the investigation, the Respondent acknowledged the trespass, but attempted to minimize his participation in the incident and to assign responsibility for the trespass to the other law enforcement officer. Bob Gualtieri, the sheriff of Pinellas County, Florida, is responsible for operation of the Petitioner and is authorized to impose discipline on the Petitioner's employees who violate rules or regulations adopted by the Petitioner in accordance with a Civil Service Act. The Petitioner has adopted General Order 3-1 to establish a standard of conduct for the Petitioner's employees and has categorized misconduct into disciplinary levels based on the severity of a transgression. "Level 5" violations reflect serious misconduct. The Respondent's participation in the felony trespass and his failure to report the incident to his superiors constitute separate level 5 violations. The Respondent violated Rule 5.4, which requires that employees be aware of their assigned duties and responsibilities and take prompt and effective action in carrying them out. The Respondent violated Rule 5.5, which requires that employees observe and obey all laws and ordinances and report violations by written memorandum upon their first duty shift following a violation. The Petitioner has adopted General Order 10-2 to establish a point system to be followed by the Petitioner's Administrative Review Board for the imposition of discipline based on adopted guidelines. The Respondent has accumulated 75 disciplinary points, 60 of which are based on the trespass incident underlying this proceeding. Termination from employment is within the range of discipline established by the Petitioner's rules and procedures applicable to the facts of this case. The Respondent has asserted that the sheriff's exercise of discretion in terminating his employment was severe and unreasonable. There is no credible evidence to support the assertion. The basis for the Respondent's termination was the Respondent's commission of the felony of armed trespass and his failure to inform any superior officer within the chain of command of the incident. The sheriff's decision to terminate the Respondent from employment was clearly warranted. There is no evidence that the sheriff inappropriately applied the Petitioner's rules and procedures or that any similarly-situated employee has been subjected to lesser discipline by Sheriff Gualtieri for comparable conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Sheriff's Office enter a final order terminating the Respondent from employment. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of March, 2013. COPIES FURNISHED: Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Carole Sanzeri, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
The Issue The issue in this case is whether the Petitioner's application for a Class "D" Security Officer License should be granted or denied.
Findings Of Fact On or about January 4, 1994, the Petitioner filed an application for a Class "D" Security Officer License pursuant to Chapter 493, Florida Statutes. On April 20, 1994, the Respondent sent a letter to the Petitioner advising him of its intention to deny his application. The sole stated ground for denial was described as "[f]ailure to qualify under Section 493.6118(1)(j). You committed an act of violence or used force on another person which was not for the lawful protection of yourself or another." The denial letter also made specific reference to the date of February 21, 1993, and specifically referred to criminal charges allegedly brought against the Petitioner on that date for battery and aggravated battery. With regard to the Respondent's basis for denial, the proof demonstrates that during the early afternoon of February 21, 1993, the Petitioner became involved in an argument with Jessica Favata, an adult female with whom he was acquainted. The intensity of the argument escalated and at one point the Petitioner physically pushed Ms. Favata. At that point a male friend of Ms. Favata, one Bradley Watson, injected himself into the argument. As the intensity of the argument between the Petitioner and Mr. Watson continued to increase, the Petitioner retrieved an aluminum baseball bat from his motor vehicle and began swinging the bat in the general direction of Mr. Watson. During the course of one of the swings of the bat, the Petitioner struck Ms. Favata on the hand with the bat. As a result of being struck by the bat, Ms. Favata's hand was visibly injured. During the course of the events described in the preceding paragraph neither Ms. Favata nor Mr. Watson were armed with any type of weapon. Similarly, neither Ms. Favata nor Mr. Watson were causing or attempting to cause physical harm to the Petitioner.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application for a Class "D" Security Officer License. DONE AND ENTERED this 31st day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 31st day of October, 1994.
The Issue The issues in this case are whether the Respondent, the Department of State, Division of Licensing, should grant the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License. Specifically, under Section 493.6118(3), Fla. Stat. (1991), the issue as to each application is whether there is clear and convincing evidence that the Petitioner lacks good moral character.
Findings Of Fact The Petitioner, Ricky O. Dawes, was a municipal law enforcement officer from approximately 1975 through the middle of 1977. He was a deputy sheriff and, later, a detective with the Hillsborough County Sheriff's Office from approximately June, 1978, through April, 1979, and from May, 1980, through August, 1992. Background checks when he was employed with the Sheriff's Office revealed no evidence of facts that would establish a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation. Nor is there any evidence, during the course of his employment through approximately May, 1992, that the Petitioner had a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation. During the summer of 1992, and for some time before, the Hillsborough County Sheriff's Office was involved in a substantial multiple-law-enforcement- agency investigation. In approximately June or July, 1992, the law enforcement agencies involved learned that the subjects of the investigation not only knew about it but had been given copies of four pages of notes made by members of the Sheriff's Office involved in the investigation that listed, by name and in some cases additional identifying information, some 15 "suspects" and 22 "possible targets." The disclosure seriously compromised the investigation, to say the least. An internal investigation was launched to determine the source of the damaging disclosure. It was revealed that a copy of the notes had been in the copying room of the identification and records section of the Sheriff's Office for approximately six to eight weeks prior to the disclosure. An employee recalled: seeing it on a work table in the copying room at the beginning of that time period; looking at it and realizing it was something important that should not be made public; thinking that whoever put it there would be back for it soon; and finishing his business in the copying machine, leaving the notes where he had found them. He also recalled returning to the copying room the next day and not seeing the notes where he had left them. He assumed at the time that whoever had put them there had returned and removed them. But later, in July, 1992, he read in the local newspapers that copies of documents sounding much like what he had seen in the copying room had been given to the suspects under investigation. He returned to the copying room and found the notes in a stack of miscellaneous papers. Several people, including the Petitioner, were questioned under oath during the course of the internal investigation. The Petitioner was questioned in a deposition conducted by an assistant state attorney on or about July 30, 1992. During the deposition, the Petitioner was shown copies of the four pages of notes that were recovered from the copying room and was asked whether he had ever seen a copy of them. The Petitioner looked at all four pages carefully (the deposition transcript indicates a pause in the proceedings) and answered, "no." After the deposition, the four pages of notes recovered from the copying room were processed for latent fingerprints. The Petitioner's left thumb print appeared on the left side of one of the pages, labeled at the top "Possible Targets," about two-thirds of the way up the page. On the list of 14 "possible targets" on that page were the names Vincent Loscalzo, who the testimony indicates is reputed to be involved in organized crime in the Tampa area, and several others whom the Petitioner either knew personally or whose names he would have recognized. The Petitioner's left thumb print also appeared on the left side of the next page of the list of "possible targets," also about two-thirds of the way up the page. On the list of eight names on that page were at least two names the Petitioner would have recognized. One was the husband of the mayor of the City of Tampa. The Petitioner knows Vincent Loscalzo personally. While employed with the Hillsborough County Sheriff's Office, the Petitioner also was in business for himself distributing an oil re-refiner. The Petitioner is concentrating on that business now that he has "retired" from the Sheriff's Office. (The Petitioner tried to give the false impression that his "retirement" in August, 1992, had nothing to do with the internal investigation and that the Petitioner had been planning for some time to retire in August, 1992, to concentrate on his business.) The product was manufactured by a company in which Vincent Loscalzo has an ownership interest. Loscalzo has an office above a lounge he owns in Tampa, called the Brothers Lounge, and the Petitioner has had conversations with him there. It is found that the Petitioner testified falsely on his deposition that he had never before seen copies of the four pages of notes recovered from the copying room. Many people, besides the Petitioner, had access to the copying room during the six to eight weeks that the notes were there. Most had legitimate Sheriff's Office business to conduct, and they would not have been questioned or supervised. Others, not having legitimate Sheriff's Office business to conduct, also could have entered the copying room unquestioned and unsupervised during that time period. Two other person's fingerprints were identified on the notes- -the person who brought the notes into the copying room and left them, and the person who saw the notes and recovered them after reading about them in the newspaper. Not all people who touched the notes necessarily would have left fingerprints that could be lifted and identified. Many factors would enter into the question whether someone who touched the notes would leave prints that could be lifted and identified. In addition to those identified, some unidentifiable prints were left on the notes. Under these facts, the Respondent concedes in its proposed recommended order that it was unable to prove, by clear and convincing evidence, that the Petitioner criminally disclosed the existence of a substantial criminal investigation to the subjects of the investigation. On or about January 23, 1993, the Petitioner was stopped for driving a motor vehicle while impaired by alcohol consumption. As the arresting officer approached the Petitioner's vehicle, from the rear, the Petitioner opened the driver-side door and got out. As he did, his left pant leg got caught on an object that appeared to be under the pant leg at the Petitioner's ankle, and the pant leg bunched up and bulged. The Petitioner identified himself to the arresting officer as a retired deputy sheriff. Based on the arresting officer's experience and knowledge, particularly that off-duty law enforcement officers often concealed their firearms under the pant leg in an ankle holster, the arresting officer asked if the bulge he saw under the pant leg was a firearm. The Petitioner acknowledged that it was. In answer to the officer's question whether the Petitioner had a permit to carry a concealed firearm, told the officer that he did. In fact, the Petitioner did not even apply for a concealed firearm license until March 30, 1993, and one was not issued to him until April 6, 1993. It is found from the clear and convincing totality of the evidence in this case, taken as a whole, that the Petitioner lacks a personal history of honesty, fairness, and respect for the rights of others and for the laws of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order denying the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License. RECOMMENDED this 19th day of August, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 19th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2048S To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Rejected as not proven that the resignation was totally voluntarily. Also, no party questioned about it at the hearing knew the procedures for licensure by a former law enforcement officer. In any event, the procedures are matters of law, not fact, and are set out in Section 790.06, Fla. Stat. (1991). Otherwise, accepted and incorporated to the extent necessary. Rejected in part as not proven and as being conclusions of law. Fact of the pendency of criminal proceedings, a ruling suppressing evidence, and the State's appeal accepted but unnecessary. Rejected as not proven and as contrary to facts found and as contrary to the greater weight of the evidence that the firearm was visible. (It was only detectable.) Part of the rest is rejected as being conclusions of law, and the other part of the rest is accepted and incorporated to the extent not subordinate or unnecessary. Accepted but unnecessary that the Petitioner has been charged but not convicted. The rest is rejected as being argument and conclusions of law. Accepted (the questions to the witnesses excluded reference to the charges leveled in this case) and subordinate to facts found. Rejected in part as being argument and conclusions of law and in part as not proven and as contrary to facts found and to the greater weight of the evidence. First sentence, accepted and incorporated. Second sentence, rejected in part as being argument but otherwise accepted but in part subordinate to facts contrary to those found and contrary to the greater weight of the evidence. Third sentence, rejected as being argument and not proven and contrary to facts found and contrary to the greater weight of the evidence. Fourth sentence, rejected for the same reasons as in 3., above. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated. 3. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-9. Accepted and incorporated to the extent not subordinate or unnecessary. 10. Accepted but subordinate and unnecessary. 11.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. Accepted but subordinate and unnecessary. 15.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. COPIES FURNISHED: Ellis Faught, Jr., Esquire 206 Mason Street Brandon, Florida 33511 Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue to be resolved in this proceeding concern whether, because of a prior regulatory and criminal history, the Petitioner is entitled to licensure in Florida as a nonresident life, health and variable annuity agent.
Findings Of Fact The Petitioner, Eugene P. Kent, at times pertinent hereto was a licensed insurance agent in South Dakota. He was apparently an agent or broker for the Independent Community Banker's Association of South Dakota and engaged in the insurance business with regard to the various group benefits coverage for that association. Apparently in 1995, he become involved in a dispute between the Independent Community Banker's Association of South Dakota and United of Omaha Life Insurance Company. This dispute, the exact nature of which is not of record in this case, resulted in the Petitioner being charged with mail fraud by the United States Attorney for the District of South Dakota. He was prosecuted for mail fraud and ultimately was convicted by jury verdict on or shortly after October 26, 1996. He was sentenced to two years' imprisonment. The Petitioner believed that evidence existed in the home office of United of Omaha Life Insurance Company, which would exonerate him, and that his counsel during the criminal prosecution had, for unknown reasons, failed to subpoena and obtain such evidence for use in his criminal trial. He obtained new counsel who was successful in obtaining the evidence in question, which indeed proved to be exculpatory. It resulted in the presiding judge in the criminal case vacating the order of conviction, resulting in the Petitioner's release from incarceration. Because of his conviction, the insurance departments of South Dakota, as well as North Dakota and Nebraska, had revoked his insurance licenses, based upon the criminal conviction. On October 26, 1996, during the progress of the criminal trial referenced above, the Petitioner and his wife became concerned that she would not have funds to pay for his counsel, to operate her home and the business and to pay for her son's alcohol rehabilitation expenses if the jury returned a guilty verdict resulting in his incarceration. Consequently, on that day, the Petitioner made a withdrawal from his business account, drawn upon the Kent Insurance, Inc., account in the amount of $9,900, by writing a check on that account. On the same day, the Petitioner went to a different branch of the same bank and negotiated a second check on this same account also made payable to him, again, in the amount of $9,900, drawn upon the Kent Insurance, Inc., business account. The bank officer upon the occasion of the second withdrawal that same day told him that a currency transaction report would have to be filed. The Petitioner readily agreed to file the report and assisted the bank officer in completing and executing the transaction report. Thereafter, the United States Attorney secured an indictment of the Petitioner, during his incarceration for the earlier criminal conviction, before it was vacated by the trial judge. He prosecuted the Petitioner for "attempting to cause a financial institution not to file a report." During the pendency of this second criminal proceeding, the Petitioner remained incarcerated from the earlier proceeding, which was later vacated. Because of this, his counsel in the second criminal proceeding advised him to plead guilty to the second charge in return for a light penalty, because his counsel believed that if he attempted to litigate the second criminal matter to trial, he would have difficulty convincing a jury of his innocence because he was already incarcerated on the earlier mail fraud charge. Consequently, on May 20, 1998, the Petitioner pled guilty to attempting to cause a financial institution not to file a report. He was sentenced to five months' imprisonment as a result of that plea, which ran concurrently with the sentence imposed on February 24, 1997, regarding the mail fraud charge. After release, he was sentenced to supervised release for a period of approximately two years. The preponderant evidence in this proceeding shows that the Petitioner did not attempt to defraud the federal government or to prevent the bank involved from filing the report. Upon being informed of the requirement of filing the report, he freely consented and helped execute the report form involved at his bank. The funds he withdrew with the two checks were his funds from an account over which he had ownership and signatory authority. There is no evidence that the funds in the account withdrawn by the Petitioner had been obtained through an criminal alleged enterprise or that the Petitioner contemplated using them for such a purpose. The post-conviction evidence that was obtained by the Petitioner and his counsel resulted in the judge vacating the first conviction for mail fraud. This new evidence was also the basis for the South Dakota Insurance Regulatory Agency reinstating his licensure. Ultimately, the other states which had revoked his licensure reinstated his licenses. The Petitioner is now similarly licensed in 17 or 18 states. He applied for licensure as a non-resident life, health, and variable annuity agent in Florida and that application was denied by the Department due to his criminal history and the prior administrative actions against his licensure in the other states. That denial resulted in this proceeding. The other states which have since either reinstated his licensure or licensed him did so with knowledge, as reported by the Petitioner, of his prior criminal and administrative proceedings. The Department has a rule listing various crimes (in Classes A, B, and C) such that, if a petitioner has been so convicted, then that petitioner cannot be licensed for periods of times stated in that rule. Class A crimes listed in that rule carry the longest period of time during which licensure is prohibited with a waiting period extending as much as 15 years. The Division of Licensing of the Department decided that the crime involved herein was a "Class A crime." The rule allows the Department to analogize the crime of which a petitioner or applicant has been convicted with one of the crimes listed in this rule if the crime, of which an applicant was convicted, is not itself listed in the rule. The Division of Licensing thus decided to classify the crime of "attempting to cause a financial institution not to file a report" as analogous to "defrauding the government" or "obstruction of justice." The Petitioner was not charged with either defrauding the government or obstruction of justice and was not convicted of those crimes. Although the stipulation of facts between the Petitioner and the United States Attorney, attendant to the Petitioner's plea in the second federal criminal case (Petitioner's Exhibit G), shows that the Petitioner knowingly attempted to avoid the reporting requirement imposed by Title 31 U.S.C. § 5313(a) on the bank for currency transactions of more than $10,000 in one day, there is no persuasive evidence that he did so for any illegal purpose or fraudulent intent, or intent to in any way "obstruct justice," or engage in dishonest conduct. There was no demonstrative harm to the public nor was there any "victim" of his purported crime. If the Petitioner had truly wanted to conceal the transaction or induce the bank to fail to report it, he could simply have presented the second $9,900 check on another day for cashing, or had his wife negotiate such a check on a different business day. Instead, when told by the bank employee, on presenting the second check, that a currency transaction report would have to be filed, he freely assented and assisted in the preparation of the report form; even the above-referenced stipulation of facts attendant to his criminal plea shows this. There was no requirement that a report be made until the second check was negotiated on the same day. The Petitioner's testimony in evidence, including the fact that 18 states have licensed him or re-instated his licensure since the criminal and administrative proceedings at issue herein, with knowledge of those proceedings, shows preponderantly that his crime did not "involve moral turpitude" and that he is fit and trustworthy for engagement in the practice of insurance. The crime to which he pled did not involve any significant, rational relationship or nexus to the two "analogized crimes" involving "obstruction of justice" or "defrauding the government" for purposes of the Department's rule cited below. Two affidavits, admitted as Petitioner's Exhibits J and K, as corroborative hearsay, in accordance with Section 120.57(1)(c), Florida Statutes, bear out this finding and are worthy of quotation. The first affidavit is that of attorney James L. Volling, the Petitioner's counsel for purposes of appeal and post-conviction challenge to his first conviction, and his counsel for purposes of the second criminal case. Mr. Volling practices in Minneapolis, Minnesota, and is admitted to practice by the Minnesota Supreme Court, as well as by the United States District Court for the District of Minnesota and for the District of North Dakota. He is also admitted to practice in the courts of appeal for the District of Columbia Circuit, the Eighth Circuit and the Fifth Circuit, as well as the United States Supreme Court. He testified in pertinent part as follows: Following Mr. Kent's conviction on two counts of mail fraud, I was retained to represent him for purposes of appeal and post-conviction challenge to the conviction as well as in connection with a second case brought against him. Upon reviewing the facts and the law in Mr. Kent's case, I became convinced that his conviction was defective and inappropriate. Ultimately, the trial court agreed and his petition for post-conviction relief was granted and his conviction and sentence were vacated. The government chose not to appeal that decision which I believe clearly would have been upheld by the United States Court of Appeals for the Eighth Circuit. During the pendency of post-conviction proceedings in Mr. Kent's case, the government brought a second case against Mr. Kent involving allegations of an attempt to avoid currency transaction reporting requirements. In my view, these allegations were petty at best, especially considering that the bank involved did file a currency transaction report and Mr. Kent expressly permitted them to do so. Mr. Kent was simply withdrawing his own money and there was no claim that those funds were the product of any illegal activity [or for any illegal purpose]. The government's second case was only technical in nature and, in my view, would not have been charged in any other jurisdiction with which I am familiar. Indeed, the assistant United States attorney representing the government told me that the only reason the government brought the second case was their concern that Mr. Kent's conviction in the first case would ultimately be overturned, which of course it was. With regard to the currency transaction reporting matter, Mr. Kent elected to enter a plea bargain to avoid further expense and burden, and which did not augment the punishment that had been given to him in the first case. I have no doubt that, if Mr. Kent, had not been convicted in the first case so that he would not have had that stigma at the time of the second case, he would have elected to try the currency transaction reporting case rather than to enter into a plea agreement. It was after that plea agreement, that the conviction and sentence in Mr. Kent's first case were vacated. I have known and dealt with Eugene Kent for approximately five years now. During that entire time, he has always been a man of his word. He has done exactly what he said he would do and has told me the truth in every respect. I have great respect and admiration for Mr. Kent as person and as a client. I believe he has suffered unfairly throughout this entire ordeal, but he has remained steadfast and persevered through some truly difficult times. I have been proud to serve as his legal counsel, and I would recommend him unhesitatingly to anyone in terms of employment or any business relationship. The second affidavit is by Mark F. Marshall. Mr. Marshall is now a lawyer and at times pertinent hereto has been admitted to the practice of law by the South Dakota Supreme Court. He has been in the active practice of law since 1981. At times pertinent hereto from January 1, 1996, until August 1, 2000, Mr. Marshall served as a United States Magistrate Judge for the District of South Dakota. Mr. Marshall testified pertinently as follows: From January 1, 1996 until August 1, 2000, I served as a United States Magistrate Judge for the District of South Dakota. In my capacity as a United States Magistrate Judge, I conducted the initial appearance and detention hearings in a matter styled the United States of America v. Eugene P. Kent, CR. 96-40002-01. Over the objection of the United States, I ordered Mr. Kent released on conditions. A copy of the Order Setting Conditions of Release, as well as Mr. Kent's Appearance Bond in the Amount of $100,000.00 is attached hereto as Exhibits A and B respectively. [released on a non-surety bond requiring no security.] In my capacity as a United States Magistrate Judge, I conducted a hearing on the Defendant's Motion to Dismiss in a matter styled the United States of America v. Eugene P. Kent, CR. 97-40111. [the currency transaction prosecution.] I denied the Defendant's Motion to Dismiss as I believed that an issue of fact existed as to the Defendant's intent. While I believed that it would be improper to dismiss the case because of that issue, I also know that if I had been the finder of fact I would have found the Defendant not guilty of all of charges in the indictment. Perhaps more so than any defendant who appeared before me, Mr. Kent comported himself with grace, dignity, and the utmost of integrity with regard to both criminal cases. Since being exonerated from all underlying criminal counts regarding this matter, Mr. Kent has asked me to submit an affidavit on his behalf. Initially, I was reluctant to do so not because Mr. Kent was unworthy of support, but because I was concerned about whether doing so would reflect adversely on my former judicial office. I have concluded that the interests of justice compel me to provide this affidavit on behalf of Mr. Kent. I am firmly of the belief that Mr. Kent committed no criminal acts in either of the cases venued in the United States District Court for the District of South Dakota and as such he should not bear the stigma of any criminal record. I have been a member of the South Dakota Board of Pardons and Paroles since July of 2002. During my tenure as a member of the Parole Board, I have reviewed hundreds of applications for pardons. I have reviewed all public filings in Mr. Kent's civil actions arising from his conviction as well as all filings in the criminal action itself. Based on my experiences as a Parole Board member, my knowledge of Mr. Kent individually and professionally, and as well as my knowledge of the role that pardons serve in the state and federal judicial system, I believe that Mr. Kent is an unusually worthy applicant for such extraordinary relief. It is my personal belief that Mr. Kent poses no threat to society whatsoever. Society's interests, as well as those of Mr. Kent, would be well served by granting him the relief he seeks . . . . Dated this 11th day of November, 2003.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petitioner be granted licensure. DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Eugene P. Kent 1209 West 37th Street Sioux Falls, South Dakota 57105
Findings Of Fact In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years. During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales. In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again. The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony. Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried. The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted. Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure. In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time. The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above. Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted. DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made. Respondent's Proposed Findings of Fact Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made. Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery. Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented. COPIES FURNISHED: Mr. William C. Harrell P.O. Box 5503 Jacksonville, FL 32247 John C. Jordan, Esq. Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esq. General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1992, licensed as an insurance representative in the State of Florida holding 02- 15, 02-16, 02-18, and 02-40 licenses. In October of 1999, an indictment was filed against Respondent and others in United States District Court for the Southern District of Florida Case No. 99-8145 (Indictment). In Count One of the Indictment, the following was alleged: From at least as early as November, 1993, through on or about September, 1999, the exact dates being unknown, at West Palm Beach, Palm Beach County, in the Southern District of Florida and elsewhere, the defendants JOHN PHILIP ELLIS, SR., ROBERT KOCH, SHARON ALFONSO, MARK KENNEDY, JEFFREY POLLARD, HOWARD RICCARDI, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with each other, and with persons known and unknown to the Grand Jury, to defraud the United States by attempting to impede, impair, obstruct and defeat the lawful government functions of the Internal Revenue Service (IRS) of the Treasury Department in the ascertainment, computation, assessment and collection of revenue: to wit, income taxes. * * * In violation of Title 18, United States Code Section 371. Respondent pled guilty to the crime alleged in Count One of the Indictment. Based on Respondent's guilty plea, he was adjudicated guilty of said crime and, on January 23, 2002, given the following sentence: 21 months in prison, three years' probation following his release from prison, and a $100.00 fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order revoking Respondent's licenses pursuant to Section 626.611, Florida Statutes. DONE AND ENTERED this 18th day of November, 2004, 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 18th day of November, 2004.
The Issue The issue for consideration in this case is whether Respondent's certification as a law enforcement officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the CJSTC was the state agency responsible for the certification of law enforcement officers in Florida. Respondent was certified by the CJSTC on May 21, 1982, holding law enforcement certificate number 105625. On November 7, 1997, the Tampa Police Department's Street Anti-Crime Squad initiated one of its periodic routine reverse prostitution stings at the intersection of Crawford and Nebraska Avenues in Tampa. Officer Dana Berry, a female police officer, played the part of the prostitute. Located in an unmarked police car across the intersection, also in civilian dress, was the "eyeball," Sergeant Russell Marcotrigiano, Officer Berry's supervisor. Officer Berry was to wait to be approached by a male customer, and when that happened, was to agree to an assignation for money. Without doing anything in furtherance thereof, if the customer agreed, she was to direct him to room 8 of the El Rancho Motel, down the block on Nebraska Avenue. Her pointing to the motel was the signal to Sergeant Marcotrigiano that a deal had been made. If the customer went to the motel, he would be arrested there. If he did not and drove away, the offense was in the solicitation and the customer would be arrested in a routine traffic stop within two blocks of the site. Sergeant Marcotrigiano was there to coordinate the sting, and even more important, to safeguard the welfare of Officer Berry. Parked in a marked patrol car about two blocks north on Nebraska Avenue were two uniformed officers, Officer Stephen Prebich and Officer MacFarlane, who, upon the direction of Sergeant Marcotrigiano, were to arrest the perpetrator in the routine traffic stop. The sting operation started at approximately 1:45 p.m. on November 7, 1997. At approximately 2:06 p.m., Respondent, driving a green pickup truck, stopped at the intersection in question and made eye contact with Berry, who was standing near a parking lot close-by. Immediately upon contact, Berry came over to the driver's side of Respondent's vehicle and asked if he was lost. Berry did not recognize Respondent as a police officer though there is some evidence, and Respondent so claims, that they had met at work on a previous occasion. Respondent denied being lost and asked Berry if she needed a ride. Berry indicated that she had a room at a nearby motel where they could go, but not without knowing what Respondent wanted. She had been instructed not to mention a sexual act but to wait until the subject first described the requested sexual act. Ultimately he said "a blow-job," and when Berry asked him how much money he had, he replied either "twenty," as Berry claims, or "plenty," as Respondent claims. At this point, considering the deal made, Berry directed Respondent to the motel and pointed to it. This was the signal to Sergeant Marcotrigiano that Respondent should be arrested. Instead of going to the motel, Respondent drove off, turning right onto Nebraska Avenue, heading north. Within two blocks, he was pulled over by Officers Prebich and McFarland. Both officers went to Respondent's vehicle, accompanied by two other officers. Weapons were not drawn. When the officers got to Respondent's vehicle, Officer Prebich opened the driver's door and requested he get out of the vehicle. When Respondent complied, he was placed under arrest. At this point, Officer Prebich did not recognize Respondent. However, it appears that Officer MacFarlane did recognize him. While Respondent was being searched, a pay stub was discovered which indicated that Respondent was a police officer. The arresting officers took Respondent back to the command post where Sergeant Marcotrigiano and Officer Berry were waiting. At this point, Respondent was asked where he worked and replied, "tactical." Prebich claims he did not say much to Respondent at that time. He states he may have mentioned Berry's name to Respondent but does not believe he did so. Officer Politano was working at the command post at this time, writing up paper work on the prostitution sting and monitoring the radio. He recalls Respondent being brought into the command post under arrest. Sergeant Marcotrigiano spoke with Respondent and instructed Politano to take down the names of the parties. In the course of doing this, Politano spoke with Respondent who told him he knew Officer Berry and her former supervisor, Sergeant Raulerson, and was just playing with Berry when he made the statements attributed to him by her. Politano contends that it is quite common for police officers to tease undercover operatives who are on duty, including women. This teasing, however, is usually confined to cat-calls and whistles, and he has never heard of a proposition such as was involved here in a stake-out situation. Respondent admits to a conversation with Officer Berry at the location in issue on the afternoon of November 7, 1997. However, he denies having driven past Berry's location twice before stopping to speak with her. Both Berry and Sergeant Marcotrigiano claim he did, however, and neither would have any reason to dissemble. Further, Respondent contends that he could not have been at the intersection at 2:06 p.m. as indicated by Berry and the sergeant. He claims to have left his credit union on Bearss Street after 1:45 p.m., and considering the state of traffic, could not have traveled the 8.9 or so miles between the credit union and the intersection of Crawford and Nebraska Avenues, gone around the block twice as alleged, and still have had the conversation with Berry in time to be arrested at 2:06 p.m. There are several collateral matters to consider regarding the time issue. In the first place, Respondent contends that the accuracy or lack thereof is indicative of the non-credibility of the arrest report. However, no independent evidence was introduced to show that the time stamp on the credit union transaction ticket, showing 1:45 p.m., is accurate. Regardless, Respondent admitted to a version of the reported conversation between him and Berry, and it is that conversation and the circumstances which surround it, not the exact time, which is important. Respondent categorically denies having seriously solicited Officer Berry for an act of oral sodomy. He claims that while driving in the vicinity, searching for a shop to reasonably detail his relatively new truck, he spotted her on the sting. They made eye contact and, he claims, she nodded at him. Since he recognized her from work, he thought she recognized him as well. She did not, though he had seen her on several occasions at the police station where he would go frequently. Respondent claims he noticed Officer Berry when he stopped for a traffic light at the intersection, and while he was waiting for the light to change, she came up to his truck and asked him if he was lost. Thereafter, the conversation progressed as previously indicated, though Respondent claims to have said "plenty" rather that "twenty" in response to her query as to how much he had. He claims he had no intention to have any sexual contact with Berry and drove off, heading north on Nebraska Avenue, when she pointed to the motel. When questioned by Sergeant Marcotrigiano at the command post, Respondent claims he indicated that he thought Berry had recognized him as he had recognized her, and was just "fucking around." Respondent related this same story to Captain Doyle, the supervisor, but such crass verbalization without an indication he was kidding makes Respondent's claim unbelievable. In July 1997, Respondent and the CJSTC entered into a Stipulation and Settlement Agreement in the Commission's case number L-3388 whereby Respondent's certificate was suspended for 80 hours, and he was placed on probation for a period of one year after reinstatement of his certificate. The documentation of record does not indicate the basis for that action. During May 1999, Respondent, through counsel, filed a motion to dismiss the criminal charge of soliciting for prostitution which had been filed against him in Hillsborough County Court. On June 14, 1999, the motion to dismiss was granted and Respondent was discharged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certification as a law enforcement officer. DONE AND ENTERED this 24th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1999. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire Police Benevolent Association 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, 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 On October 19, 1982, the Petitioner Mikal Talib Hamin applied for licensure as a general lines insurance agent. The Respondent Department of Insurance denied the Petitioner's application on March 29, 1983, due to his failure to inform the Department on other applications for insurance licensure that he had been charged with or convicted of a felony. This denial was based on the Petitioner's previous applications for licensure as an ordinary life insurance and health insurance agent in which the Petitioner informed the Department that he had neither been charged with nor convicted of a felony. On March 3, 1973, the Petitioner, then known as Michael Thomas Hanks was convicted of robbery in the criminal court of record, Dade County, Florida, and sentenced to 15 years in prison. The Petitioner was released from prison on October 25, 1977 and was on parole supervision until October 25, 1979. When the Petitioner was convicted, he was 17 years old. Since his release from prison, the Petitioner has obtained his GED, been steadily employed and has encountered no other problems with the criminal justice system. The Petitioner is married and is three semesters away from obtaining a college degree in Business Administration. Due to the Petitioner's positive adjustment to parole, Martin Carroll, the Petitioner's parole officer recommended that the Parole Commission terminate the Petitioner's parole ahead of schedule. The Parole Commission granted early termination and the Petitioner's civil rights were restored effective March 22, 1979, by the Office of Executive Clemency. On January 24, 1982 and March 26, 1982, the Petitioner applied for licensure as a disability and ordinary life agent, respectively. Both of these applications asked the Petitioner whether he had been charged with or convicted of a crime and on both applications he stated "no". The Petitioner subsequently sat for these exams, passed the exams and was licensed as a disability and ordinary life agent. In completing these applications, the Petitioner consulted Jeff Dickerson, an insurance agent for whom be worked at the time, who advised the Petitioner that he need not disclose his previous conviction because of the length of time that had passed and the fact the Petitioner was only 17 when the conviction occurred. The Petitioner followed this advice and did not disclose his past felony conviction on his applications. Subsequently, the Petitioner went to work for another insurance agent, Hakim Shaeed, and applied for licensure as a general lines agent. In completing this application, the Petitioner consulted Shaeed, who informed him that the prior felony conviction should be disclosed to the Department. The Petitioner informed the Department of the misstatement on his prior applications, pending application and his felony conviction by letter to Joe Crutchfield, dated March 21, 1983. On November 15, 1978, the Petitioner changed his name from Michael Thomas Hanks, the name under which he was convicted, to Mikal Talib Hamin. The Petitioner submitted letters from Nashid Sabir, Esquire, Lorrett Duffy, Personnel Administrator, Broward Cablevision, Alphonse Wright, Coordinator Drug Abuse and Prevention Program, Liberty City Youth, Hakim Fakir, P.U.L.S.E. Coordinator, and B. W. Smith, an insurance agent, attesting to his good character and reputation in the community.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint in Case No. 83-1435 dated July 13, 1983, be dismissed. Mikal Talib Hamin be allowed to sit for examination as a general lines agent. DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th this day of September, 1983.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
