The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. G. Convicted or found guilty or entered a plea of nolo contendre to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 January, 2012.
The Issue The issue in the case is whether the Respondent is quilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent was certified by the Commission on February 28, 1992, and was issued Law Enforcement certificate number 122723. (Stipulation) The Respondent was employed as a Special Agent for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, from September 13, 1991, to October 18, 1996. (Stipulation) Kenneth Hunter is employed as a deputy sheriff with the Leon County Sheriff's Office, and has been so employed since July 5, 1989. Deputy Hunter has known the Respondent since 1991, when they attended law enforcement academy together. Deputy Hunter and the Respondent kept in touch over that period of time. On June 17, 1995, at approximately 9:00 a.m., the Respondent called Deputy Hunter at his residence. The Respondent told Deputy Hunter that the Respondent's brother, Reverend Gregory James, had been beaten up by Colby Richardson, and that Richardson had stolen some money from his brother, a local minister. The Respondent told Deputy Hunter that the amount stolen was $1,500.00. Some of the money which was taken was money which Reverend James had withdrawn intending to give it to the Respondent. The Respondent stated to Hunter that the prior evening he had spoken to Colby Richardson, and that Mr. Richardson had agreed to return the money taken from Reverend James. The Respondent asked Deputy Hunter to accompany him to Quincy, Florida, to find Richardson. When Respondent called Hunter, the Respondent was on his way to Pensacola, Florida, for a professional course, and was driving his state-issued vehicle which was equipped with a police radio and strobe light. The Respondent picked up Deputy Hunter at Hunter's residence, and introduced Hunter to Reverend James, who was riding in the back seat of the vehicle. Deputy Hunter asked the Respondent why his brother had not reported the robbery, and the Respondent stated that his brother was well known in the community, and did not want to make "a big stink" about it. The Respondent, Deputy Hunter, and Reverend James traveled to Quincy, Florida. While in Quincy, the Respondent spoke to two females who knew Mr. Richardson, and gave the Respondent the telephone number of Mr. Richardson's girlfriend, Rosilyn Copeland. The Respondent telephoned Ms. Copeland and asked for and received directions to her residence. The Respondent, Respondent's brother, and Deputy Hunter traveled to Ms. Copeland's residence in Quincy, Florida. The Respondent knocked on the door, and when Ms. Copeland answered the door, introduced himself as "Agent James," and introduced Deputy Hunter as "Officer Hunter." The Respondent was wearing black pants, a black polo shirt, and a black baseball cap. A conflict in the testimony exists regarding whether the Respondent, who was wearing a badge on a chain around his neck, removed his Special Agent badge from beneath his shirt and showed it to Ms. Copeland. Ms. Copeland later believed that the Respondent was a law enforcement officer who was looking for Mr. Richardson to recover money Mr. Richardson had stolen from Respondent's brother. The Respondent testified at hearing, and stated he was wearing a black shirt on the day in question, and his badge could have been visible. Deputy Hunter gave a statement to the investigator. It is noted that Hunter was also outside his jurisdiction and was the subject or the potential subject of an investigation into his activities in association with the Respondent during this incident. Hunter stated that he never identified himself to anyone they met, and that the Respondent identified himself as “Agent James” and him as “Deputy Hunter.” Hunter stated that he informed the Respondent that it was inappropriate to introduce themselves as officers, and told him not to do that. The Respondent continued to talk with Ms. Copeland about Mr. Richardson's location, and Ms. Copeland told them that she had driven Mr. Richardson to his mother's house. The Respondent asked Ms. Copeland how he could get in touch with Mr. Richardson, and she stated that she would call Mr. Richardson. Ms. Copeland contacted Mr. Richardson on the telephone, and the Respondent, who was standing outside, entered the apartment and took the telephone from Ms. Copeland. The Respondent talked to Mr. Richardson and told him that he had better give back the money. The Respondent told Deputy Hunter to talk to Mr. Richardson. Mr. Richardson stated to Hunter that he wanted to return the money, but was worried about what would happen to him. Deputy Hunter informed Mr. Richardson that nothing would happen to him, and that they only wanted the money back. Mr. Richardson stated that he didn't have all of the money, but would have it by 1:00 p.m. The Respondent gave Mr. Richardson a pager number with which to get in touch with him when Richardson had the money. The Respondent, his brother, and Hunter left Copeland’s, and drove to the residence of Bruce (last name unknown), where the robbery had occurred. Bruce was not there when they arrived, but they met Bruce driving up as they drove away. In the conversation that followed, the Respondent identified himself as Agent James. The Respondent was confrontational with Bruce and accused him of setting his brother up. Bruce denied having been involved, but Hunter was suspicious of Bruce’s version of events. Deputy Hunter told the Respondent that the facts did not sound right, and that they should report the matter to local law enforcement. The Respondent, Deputy Hunter and Reverend James went to the local police department; however, they were advised that the Gadsden County sheriff had jurisdiction. They did not seek assistance from the sheriff's department because of a personal conflict between Respondent's brother and the watch officer at the sheriff's department. Thereafter, the Respondent called Ms. Copeland to find out where Mr. Richardson was living. The Respondent, Reverend James, and Deputy Hunter traveled to the area known as Coon Bottom in the vicinity of State Road 12 in Gadsden County looking for Mr. Richardson. They encountered three boys, and the Respondent identified himself as Agent James. He asked them if they knew where Mrs. Richardson lived, and the boys pointed out her house. The Respondent, Respondent's brother, and Deputy Hunter went to her house and asked her where her son, Colby, was. When she asked why they wanted to know, the Respondent identified himself as "Agent James" and stated that they were looking for Colby. Ms. Richardson stated that she did not know where he was. Deputy Hunter wrote the Respondent's beeper number on the back of his (Hunter's) business cards, gave it to Ms. Richardson, and they left. Later that day, when Colby did not contact them, Deputy Hunter again suggested to the Respondent and Reverend James that they report the offense to the local sheriff. They obtained the mobile number of an investigator with the local Sheriff's Office. Reverend James dialed the number and handed the phone to Deputy Hunter who advised the sheriff investigator of the information as he knew it. On March 18, 1996, eight months after the incident, the Respondent gave a sworn statement to Internal Inspector John W. Harris of the Department of Business and Professional Regulation. Prior to giving his statement, the Respondent was allowed to review the statements previously given by Ms. Copeland and Deputy Hunter. The Respondent was placed under oath and notified that giving a false statement under oath constituted perjury. The Respondent stated to the investigator that he was in Tallahassee on June 17, 1995, on his way to a Narcotics Investigations Identification school in Pensacola. The Respondent stated that he and Deputy Hunter traveled to Quincy in his state vehicle to find the individual identified as Colby Richardson, who had robbed his brother. The Respondent stated that he was driving his police car, carrying his weapon and wearing his badge around his neck. Respondent stated they went to Colby Richardson's girlfriend's house, and that he introduced himself as "James" and that he introduced Deputy Hunter as "Hunter." When the Respondent was asked if he introduced himself as "Agent James" to Ms. Copeland, he stated, "No, I just said James." When asked if he had shown Ms. Copeland a badge, he stated, "No, I can't recall showing her a badge." When he was again asked if he reached inside his shirt and pulled out his badge to show her, he stated, "No, not that I can recall." The Respondent was asked if he showed his badge to anyone while he was near Colby Richardson's mother's house. The Respondent stated that he did not show his badge to the juveniles nor to Ms. Richardson. Respondent admitted that he wore his badge on a chain around his neck, and that he had it on his neck when he was talking to Ms. Copeland. The Respondent believes that Ms. Copeland knew that he was wearing a badge because she could see the outline of the badge under his shirt. There is no evidence and it is not alleged that Respondent knew at the time of the incident that his brother had not been robbed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, (1995), and that Respondent's certifications be suspended for a period of twelve months and until he presents evidence to the commission that he has taken such courses as the commission may direct on professional responsibility. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission 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 Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.
Findings Of Fact At all times relevant to this proceeding, Petitioner, Ron D. Baker (Petitioner), was the personnel director for Indian River County (County or Indian River County). Petitioner was hired to this position by Respondent, James E. Chandler (Respondent), the administrator for Indian River County, on March 18, 1996. As personnel director for Indian River County, Petitioner is a public employee and, thus, subject to the Code of Ethics. Prior to Petitioner's being hired as personnel director for Indian River County, he had served as personnel director for the City of Melbourne from 1989 to 1996. On May 15, 1997, Respondent was contacted by a reporter of the Vero Beach Press Journal and asked to comment on allegations of impropriety that had surfaced with respect to Petitioner. The allegations were that improper procedures had been followed in the County's awarding a contract to Brevard Drug Screening; that Petitioner had requested that the owner of Brevard Drug Screening, Jon Peterson, hire Petitioner's son; and that Petitioner had directed a subordinate to call the City of Melbourne to obtain personal information about the director of aviation of the Melbourne International Airport. With one exception, Respondent was unfamiliar with the allegations. The one allegation raised by the newspaper reporter that had previously been brought to Respondent's attention involved Petitioner's utilizing the services of his subordinate, Colleen Peterson, to make inquiries to the City of Melbourne for personal information about the aviation director for the Melbourne International Airport. The day after the news reporter met with Respondent, in the May 16, 1997, edition of the Press Journal, Indian River County's local newspaper, an article was published that made allegations of impropriety against Petitioner. The allegations included in the newspaper article were the same ones the newspaper reporter discussed with Respondent the preceding day. Because the allegations appeared to relate to Petitioner's employment with Indian River County, after Respondent received information regarding alleged improprieties by Petitioner from the newspaper reporter, he immediately conferred with Assistant County Attorney Terry O'Brien. Later that same day, because of the seriousness of the allegations, O'Brien set up a meeting for Respondent with Indian River County Assistant State Attorney Lynn Park, to review the information that had been provided. Thereafter, Respondent met with both Assistant State Attorney Park and Assistant County Attorney O'Brien concerning the allegations raised by the newspaper reporter. After Respondent conferred with Assistant County Attorney O'Brien and Assistant State Attorney Park, a recommendation was made that the allegations against Petitioner be investigated by the Indian River County Sheriff's Office because of potential criminal violations. On May 22, 1997, Detective Lewis Beckerdite of the Indian River County Sheriff's Office was assigned to investigate the allegations involving Petitioner. Prior to commencing the investigation, Detective Beckerdite requested that Respondent Chandler prepare a memorandum summarizing the information and allegations relative to the matter. In response to Detective Beckerdite's request, Respondent prepared a memorandum detailing the information and allegations that had been presented to him regarding Petitioner and other parties. The memorandum stated that on May 15, 1997, a newspaper reporter raised three issues of alleged impropriety by Petitioner. First, the memorandum noted that the reporter advised Respondent that according to Jon Peterson, Petitioner had requested that Peterson hire Petitioner's son. This was possibly significant because Peterson was owner of Brevard Drug Screening Services, Inc., a firm that had a contract with Indian River County. A second issue raised by the newspaper reporter and addressed in the memorandum was whether proper purchasing procedures were followed in issuance of the Brevard Drug Screening contract. Third, Respondent's memorandum noted that the reporter had made an inquiry concerning Petitioner's directing Colleen Peterson, the County's personnel assistant and his subordinate, to call the City of Melbourne's personnel office to obtain personal information about the director of aviation at the Melbourne International Airport for potential litigation involving Petitioner's wife. With regard to the issuance of the contract to Brevard Drug Screening, Respondent's May 22, 1997, memorandum indicated that he had previously looked into the matter and determined that there was no violation of County policies. Further, the memorandum noted that Respondent had spoken to Petitioner about the call made to the City of Melbourne seeking personal information about the aviation director. According to the memorandum, during that discussion, Petitioner had agreed that it was improper to use County personnel for personal matters and had said it would not happen again. In addition to information described in paragraph 10 above, Respondent's memorandum indicated that on May 16, 1997, he received a call from a County employee who said that he had heard that Jon Peterson had either sold Human Resource Health Care Group or his client list to Mackie Branham of O'Neil, Lee, and Wood, the County's health insurance firm, and that Petitioner was allegedly involved and may have received some monetary gain. The County employee also told Respondent he had heard that Petitioner had made a trip to North Carolina and stayed at a cabin or condominium either paid for or owned by Markie Branham. After receiving Respondent's May 22, 1997, memorandum, Detective Beckerdite commenced an investigation which included his interviewing and taking sworn statements from various persons, including Petitioner, Colleen Peterson, and her husband, Jon Peterson. In addition to giving sworn statements, the Petersons provided Detective Beckerdite with documents to support the allegations that they made against Petitioner. Detective Beckerdite also interviewed James "Jaime" Carraway and County employees, Beth Jordan, Tobi Erts, and Joe Baird. Detective Beckerdite presented his preliminary investigative report, including the documents obtained during the course of the investigation, to the Indian River County State Attorney's Office. The report was reviewed by State Attorney Bruce Colton and Assistant State Attorney Park, who determined that there was insufficient evidence to charge Petitioner with any criminal violation. In light of this determination, Detective Beckerdite concluded his investigation and finalized the investigative report, which included attached documents. The Beckerdite report recommended that Indian River County conduct either an internal investigation of the allegations involving Petitioner or refer the matter to the Ethics Commission. After consulting with legal counsel for the County, Respondent determined that the matter should be referred to the Ethics Commission. The primary reason for this decision was that the Ethics Commission, unlike Indian River County, had the power to subpoena witnesses and documents. Respondent believed that by having subpoena power, the Ethics Commission could address the contradictory and conflicting testimony and statements of individuals by compelling the testimony of witnesses and the production of documents that might support or refute the allegations. Respondent prepared a formal ethics complaint on the form required by and obtained from the Ethics Commission. A narrative was prepared by Respondent and a specification of charges, based upon the Code of Ethics, was prepared by Deputy County Attorney Will Collins. These two parts were combined into one document titled, "Narrative Addendum to Sworn Statement." The narrative portion prepared by Respondent detailed the events that resulted in the decision to file the complaint with the Ethics Commission and expressly stated the basis upon which the allegations against Petitioner were made. In the "Narrative Addendum to Sworn Statement," Respondent stated: On May 15, 1997, I received information regarding allegations concerning Personnel Director Ron D. Baker. The information is reflected in the attached investigative report generated by Indian River County Sheriff's Department. * * * The report summarizes the statements taken by the Sheriff's Department. I believe the report is self-explanatory. In essence there are strong allegations with respect to Mr. Baker and various individuals or firms doing business with Indian River County. As reflected in the report Mr. Baker denies the allegations. The report draws no conclusions other than it is being transmitted to me to determine whether to handle this matter internally or to contact the Florida Commission on Ethics. After a thorough review of the report, it is my opinion and our attorney's office that the allegations are very serious and, if true, would be a violation of [the Code of Ethics]. * * * As a result, as County Administrator, I am requesting an investigation by the State of Florida Commission on Ethics. The Complaint consisted of the complaint form, the "Narrative Addendum to Sworn Statement," a copy of the Beckerdite report and attachments thereto, and a copy of a May 16, 1997, article from the Press Journal. The Complaint form and these attachments were filed with the Ethics Commission on June 30, 1997. Respondent did not publicize the filing of the Ethics Complaint or desseminate it to anyone other than County employees involved in its preparation and to County commissioners. Since no criminal prosecution was to ensue and the Sheriff's Department's investigation was complete, the Beckerdite report became a public record. In light thereof, a copy of the Beckerdite report was provided to Petitioner and to a newspaper reporter. Although the newspaper reporter was provided with a copy of the Beckerdite report, Respondent did not discuss the Beckerdite report with any reporter. After Petitioner received a copy of the Beckerdite report, he requested and was granted an administrative leave of absence with pay. Several weeks after filing the Complaint, Respondent contacted the Ethics Commission Office and asked about the status of resolution of the Complaint. Respondent was advised that it would be a matter of months before a determination would be made as to whether an investigation would proceed. Because Petitioner's administrative leave with pay was scheduled to end in August 1997, Respondent believed immediate action needed to be taken to resolve the issues before that time. To accomplish this, Respondent enlisted the assistance of Robert Von Buelow, a fire investigator employed by the County, to pursue further investigation of the allegations and charges against Petitioner. Investigator Von Buelow immediately commenced his investigation by conferring with Detective Beckerdite and reviewing the Beckerdite report. As a part of his investigation, Investigator Von Buelow took sworn statements and/or interviewed several individuals and reviewed documents. Investigator Von Buelow took sworn statements from both Colleen Peterson and her husband, Jon Peterson. The Petersons also provided Investigator Von Buelow with numerous documents which appeared to substantiate their claims or allegations. However, Von Buelow's investigation was limited because of his inability to compel statements of individuals who did not want to provide statements or produce documents. On or about August 1, 1997, the results of Investigator Von Buelow's investigation were presented to Respondent for review. Based upon the investigations of Investigator Von Buelow and Detective Beckerdite and the evidence collected, Petitioner was notified of Respondent's intent to terminate his employment with the County. Petitioner was also provided with all information collected as of that date. After receiving the notice regarding the County's intent to terminate his employment, Petitioner requested a pre- determination hearing. On August 13, 1997, a nine-hour pre- determination was held during which sworn testimony and documentation pertinent to the allegations were presented. This included the sworn testimony of Petitioner, Investigator Von Buelow, Detective Beckerdite, Jon Peterson, Colleen Peterson, Lea Keller, Zander Carraway, and Ron Baker, Jr. Also, a number of evidentiary documents were received into evidence at the proceeding. On August 15, 1997, Respondent determined to terminate the employment of Petitioner based upon the evidence, the documents and sworn testimony, received and reviewed at the pre- termination hearing. However, in his decision on termination, Respondent found that there was insufficient evidence to sustain several of the charges against Petitioner and thus, those charges were not the basis of Petitioner's being terminated. After the decision to terminate Petitioner was rendered, pursuant to County personnel procedures, Petitioner requested a post-termination hearing. The post-termination hearing was held on October 16, 1997, before an appointed hearing officer. At this hearing, sworn testimony was taken from Petitioner, Mackie Branham, James Carraway, Douglas Wright, Elizabeth Jordan, Deborah Archer, Colleen Peterson, and Jon Peterson. The deposition testimony of Dr. Leo Bradman was submitted and a number of exhibits were introduced and received into evidence, including documentary evidence that had been obtained between the pre-termination hearing and post-termination hearing. On November 17, 1997, the hearing officer who presided at the post-termination hearing issued his opinion in which he found that there was insufficient evidence to terminate Petitioner. The Indian River County Commission appealed this decision to the Circuit Court of Indian River County. In November 1997, after the post-termination hearing, Thomas Reaves, the investigator with the Ethics Commission assigned to investigate the Complaint, requested that Respondent provide him with a list of potential witnesses and any documentation relevant to the Complaint. In response to this request, on December 22, 1997, County representatives delivered to Investigator Reaves all the information generated since the Complaint was filed in June 1997. This information included the Von Buelow investigative report and attached documents, transcripts of the pre-determination and the post-termination hearings, depositions, and documentary evidence presented at those hearings or other legal proceedings. Additionally, copies of the hearing officers' decisions in both the pre-determination hearing and the post-determination hearing were provided to Investigator Reaves. Some of the information provided to Investigator Reaves on December 22, 1997, contained information that had not been developed or known at the time the initial complaint was filed. Accordingly, that information was not included in the initial Complaint. After the records had been delivered to Tallahassee, Florida, Respondent spoke to Investigator Reaves by telephone and was advised that allegations or information not included in the original complaint could not be investigated unless an amended complaint was filed. Respondent informed one of the assistant County attorneys of his conversation with Investigator Reaves and discussed the apparent necessity of filing an amendment to the Complaint. Following his discussion with one of the County's assistant attorneys, Respondent prepared an amendment to the Complaint. The Amended Complaint, filed on January 28, 1998, included additional allegations and information based on Investigator Von Buelow's report, depositions, and transcripts of the pre-termination and post-termination hearings. The Amended Complaint included a completed Ethics Commission complaint form and a letter to Investigator Reaves, both which were prepared and signed by Respondent. The letter listed several additional allegations not included in the Complaint that represented potential violations of the Ethics Code. Each of the allegations was based on the testimony or statements of individuals given during the pre-determination or post-determination hearings, depositions, or Investigator Von Buelow's investigation and on documents received during the aforementioned proceedings or investigation. Prior to listing the allegations and the basis thereof, the letter stated: By letter dated November 7, 1997, you advised that the complaint had been forwarded to the Investigative Section. Additionally, a list of potential witnesses and any relevant documentation was requested. Since the original June 30, 1997, transmittal to the Commission, a substantial amount of information and documentation has been developed. This information was presented to you by County Representatives at the December 22, 1997, meeting at your office in Tallahassee. The entire file was presented including additional investigative reports, transcripts, depositions, etc. The files include information that was not known or confirmed at the time the original complaint was filed. This information and documentation appear to represent potential violation of F.S. 112.313(2), (4), (6), (7), and (8). . . . The Ethics Commission determined that the Complaint and Amended Complaint were legally sufficient. On September 29, 1997, Bonnie Williams, Executive Director of the Ethics Commission, entered a Determination of Investigative Jurisdiction and Order to Investigate which authorized Investigator Reaves to investigate allegations in the Complaint. Thereafter, on February 9, 1998, an Amended Determination of Investigative Jurisdiction and Order to Investigate was entered authorizing Investigator Reaves to investigate the allegations in the Amended Complaint. In conducting the investigation, Investigator Reaves took sworn statements from witnesses who had not been questioned during the pre-determination and post-termination proceedings, including Catherine Wendt and Christopher Matteson. He also reviewed and considered the investigative reports of Detective Beckerdite and Investigator Von Buelow; the pertinent transcribed testimony and evidence presented in the nine-hour pre- determination hearing conducted on August 13, 1997; the testimony presented in the ten-hour post-termination hearing on October 16, 1997; the sworn deposition testimony given by Petitioner in a civil action between Jon Peterson and James Carraway; and a sworn statement that Investigator Reaves obtained from Petitioner. Investigator Reaves' findings were summarized in a single-spaced typed, 60-page Report of Investigation which included numerous attached exhibits. At its June 3, 1999, meeting, the Ethics Commission concluded that there was no probable cause found that Petitioner had violated the Code of Ethics. The Ethics Commission's public report memorializing its decision was rendered on June 8, 1999. In this proceeding, the presentation of Petitioner's case centered mainly on the assertion that the alleged violations of the Ethics Code were not proven. However, the standard for this proceeding is not whether a violation of the Ethics Code has been proven. That issue has already been determined by the Ethics Commission in its dismissal of the Complaint and Amended Complaint. Rather, the issue is whether Respondent filed the Complaint and Amended Complaint with a malicious intent to injure the reputation of Petitioner by filing the Complaint and Amended Complaint with knowledge that they contained one or more false allegations, or with reckless disregard for whether they contained false allegations of fact material to a violation of the Ethics Code. Respondent did not file the Complaint or Amended Complaint to injure the reputation of Petitioner, but to carry out the responsibilities of the job as appointed County administrator. As County administrator, Respondent could not reasonably nor justifiably ignore the serious allegations of impropriety made against Petitioner merely because Petitioner denied or disputed the allegations. As described below, the allegations included in the Complaint and Amended Complaint were based upon sworn testimony, interviews, and documents obtained during investigations by trained investigators and confirmed by documentary evidence and sworn testimony presented at official proceedings. One of the allegations in the Complaint was that James Carraway, who had an ownership interest in a company providing contractual services to the County, provided Petitioner's daughter with an airline ticket to travel from Colorado to Florida. Although Baker initially denied that this occurred, in a sworn statement to Detective Beckerdite, Jon Peterson swore that this occurred. During Investigator Reaves' investigation and in this proceeding, Catherine Wendt, secretary to James Carraway, stated under oath that she arranged such a trip in the spring of 1996 using Carraway's frequent flyer miles. This fact was significant because Petitioner admitted that at or near this time, he had contacted Jon Peterson and requested that he submit a bid for the Indian River County drug screening contract and that Peterson, who was a partner with James Carraway in Brevard Drug Screening, was awarded the contract. Thus, the allegation that Peterson made and included in the Complaint, was not false, but was corroborated by Wendt. A second allegation in the Complaint was that Petitioner used a cabin, chalet, or condominium in North Carolina owned by James Carraway. In a sworn statement to Beckerdite and at the pre-determination hearing, Jon Peterson testified that arrangements had been made for Petitioner to use the Carraway cabin or chalet in North Carolina. Although, Petitioner denied that this occurred, Investigator Reaves determined that Carraway owned a cabin, chalet, or condominium in North Carolina that was available for use by friends and associates and that a request was made for Petitioner to use it. Thus, there was evidence to support this allegation. The Complaint also alleged that Petitioner received stock car race tickets from James Carraway. Jon Peterson gave sworn statements to Detective Beckerdite and testified under oath that he had received stock car race tickets from James Carraway and had given the tickets to Petitioner. James Carraway admitted to Investigator Reaves that he had given stock car race tickets to Peterson and that such tickets may have been given to Petitioner. Thus, there was evidence to support this allegation. The Complaint contained an allegation related to the hiring of Petitioner's son, Ron Baker, Jr., by James and Zander Carraway and Jon Peterson. This allegation was based on sworn statements made by Colleen and Jon Peterson and supporting documentation provided by the Petersons, both of which were included in the Beckerdite report. According to the sworn statements given by the Petersons, Petitioner asked Jon Peterson to hire Baker, Jr. and Peterson had agreed to do so. Furthermore, Jon and Colleen Peterson told Beckerdite that they hired Baker, Jr., to work for Brevard Drug Screening. However, the Petersons admitted that in lieu of paying Baker, Jr., a salary for his services, they paid the rent on his apartment, his utility bills and phone bill, and provided him with spending change. The Petersons provided cancelled checks to substantiate these statements. Petitioner's statement to Detective Beckerdite conflicted with the statements given by the Petersons. Contrary to the Petersons' statements, Petitioner denied that he ever asked Peterson to hire Baker, Jr., but indicated that he had asked James Carraway to "help" his son so he could "get on his feet." Notwithstanding Petitioner's denying that he asked Jon Peterson to hire his son, the statements of the Petersons, and the documents they furnished provided some evidence to support the allegation concerning the hiring of Petitioner's son. Another allegation in the Complaint related to Petitioner's potential involvement in a joint venture with James Carraway, owner of a County vendor, and his son, Zander Carraway, and Dr. Leo Bradman. Based on Jon Petersons's statements to Detective Beckerdite and documents Jon Peterson gave to Investigator Beckerdite, it appeared that the joint venture between the aforementioned parties contemplated and would result in their taking over the County's Employee Assistance Program (EAP) contract. The allegation involving the possible joint venture was based on the Beckerdite report, which included Peterson's sworn statement relative to that matter and the substantiating documentation provided by Peterson. Moreover, as noted in the Amended Complaint, the allegation concerning the possible joint venture appeared to be confirmed by the testimony of Dr. Leo Bradman taken on October 13, 1997, and a letter from Zander Carraway to Dr. Bradman. There was evidence to support this allegation at the time the Complaint was filed, as well as additional evidence that appeared to substantiate the allegation at the time the Amended Complaint was filed. The Amended Complaint alleged that, in a deposition taken in a civil action on September 5, 1997, Petitioner admitted that while serving as Personnel Director for Indian River County, he negotiated for the purchase of the EAP business from James Carraway. At the time of these negotiations, Petitioner knew that James Carraway and Jon Peterson were owners of Human Resource Health Care Group, the County's EAP provider, and Brevard Drug Screening, the County's drug screening contractor. Although Petitioner initially claimed to have been a mediator in the negotiations, Peterson testified that if Carraway agreed to sell his interest in the business to Peterson, Peterson and Petitioner would be partners in the EAP. In light of Petitioner's admission and Peterson's sworn statement that Petitioner was, in fact, negotiating a deal involving the purchase of the vendor providing the EAP to Indian River County, there was evidence to support this allegation. The Amended Complaint also alleged that Petitioner co- signed on a credit card application with Colleen Peterson, Petitioner's subordinate and the County's personnel administrator and wife of Jon Peterson, owner of Brevard Drug Screening, a Indian River County vendor. This allegation was based on sworn statements made by Colleen Peterson as well as documents provided by the Petersons to Investigator Von Buelow reflecting that such an application was completed. One of the documents provided by the Petersons was a copy of the completed credit card application. The application appeared to be signed by Petitioner and listed Petitioner's address as the business address of Florida Occupational Health Group in Melbourne, Florida, the entity owned by the Petersons that was vying for the Indian River County EAP contract. According to sworn statements made by the Petersons to Investigator Von Buelow, the application for the credit card was made to fund a joint venture between Petitioner and the Petersons to obtain employee assistance provider contracts, including the one for Indian River County. Notwithstanding Petitioner's testimony at this proceeding that the credit card was never issued, the statements of the Petersons and the substantiating documents they provided to Investigator Von Buelow provided a reasonable basis for Respondent's including this allegation in the Amended Complaint. The Amended Complaint alleged that Petitioner hired Colleen Peterson as personnel assistant and advised her not to disclose that she was married to Jon Peterson, a County vendor. Furthermore, it was alleged that prior to hiring Colleen Peterson to this position, Petitioner directed her to change her resume knowing that she had insufficient experience to meet the advertised job requirements and hired her without interviewing other applicants who had substantial education, qualifications, and experience. These allegations were based on statements made by Colleen Peterson and documents provided to Investigator Von Buelow during his investigation. According to Mrs. Peterson, after Petitioner became personnel director for Indian River County, he invited her to apply for the position of personnel administrator for Indian River County. In her statement, Colleen Peterson indicated that she later met with Petitioner and asked him to review her cover letter and resume; that he reviewed her resume and cover letter; and upon such review, he directed her to change her resume and/or cover letter to be misleading as to her qualifications. Petitioner was aware of Mrs. Peterson's professional experience because she had worked for Petitioner when he was personnel director for the City of Melbourne. In addition to Mrs. Peterson's statements, a review of Mrs. Peterson's resume compared to her actual experience indicated she may not have met the advertised job requirements, education, or experience as a grievance adjudicator. Also, a review of the applications of other applicants for the position of personnel assistant reflected that some of those individuals, none of whom were interviewed, had the required education and experience. Based on the findings in paragraphs 48 and 49, there was evidence to support the allegation relative to Petitioner's hiring of Colleen Peterson. The Amended Complaint further alleged that Petitioner directed an Indian River County employee with a substance abuse problem to Heritage Hospital for an in-patient treatment program at a cost of $12,930.61. This allegation was based on statements Jon Peterson made to Investigator Von Buelow. According to Jon Peterson, when a County employee required an in-patient treatment program for substance abuse, the employee was given three facilities from which to select. However, in this instance, Peterson stated that his job was to convince the employee to go to Heritage Hospital, even though that facility was not pre- certified by Blue Cross/Blue Shield, the County's insurance company; was not on the County's preferred provider list; and was approximately 200 miles from Vero Beach. A facility not on the preferred provider list was allowed to charge 20 percent more than a facility on the list. At the time the County employee was referred to Heritage Hospital, James Carraway was owner of and had a financial interest in Heritage Hospital and Petitioner was aware of Mr. Carraway's ownership interest in that facility. The apparent significance of the referral was that, as noted above, it had been alleged that Petitioner had been negotiating with James Carraway about a possible joint venture involving an EAP and the purchase of an EAP which may have served Indian River County. The allegation in the Amended Complaint relative to Petitioner's referring a County employer to Heritage Hospital was based on statements Jon Peterson made to Investigator Von Buelow and the deposition testimony of Dr. Leo Bradman. Accordingly, there was evidence to support this allegation. Additional allegations in the Amended Complaint concerned Petitioner's requesting that Peterson and the Carraways, both County vendors, make certain payments to Petitioner or Petitioner's relatives. First, it was alleged that Petitioner was paid to perform certain construction work on a bathroom at the Brevard Drug Screening Office. Second, it was alleged that Peterson's company, Brevard Drug Screening, paid medical expenses for Petitioner's wife. These allegations were based on statements Jon Peterson made to Investigator Von Buelow and on substantiating documents that Peterson provided, both of which were included in Investigator Von Buelow's investigative report. Although it was later determined that the alleged payments were not improperly made, at the time the Amended Complaint was prepared and filed, there was evidence to support these allegations. The Amended Complaint alleged that the Carraways, County vendors, had advanced Petitioner's son, Baker, Jr., $2,000 to move from Jacksonville to Melbourne. This allegation was based on statements made by Jon Peterson during the Von Buelow investigation and during the August 1997 pre-determination hearing. Thus, there was evidence to support this allegation. The Amended Complaint alleged that Jon Peterson, a County vendor, paid the cellular telephone bill for Petitioner and expressly noted that this allegation was based on "testimony" of Colleen Peterson. In addition to Mrs. Peterson's statement, this allegation was supported by Jon Peterson's testimony at the August 13, 1997, pre-determination hearing and by a copy of a canceled check given to Detective Beckerdite by the Petersons. At hearing, Petitioner testified that Jon Peterson had, in fact, paid his cellular bill as indicated by the cancelled check provided by the Petersons. However, Petitioner explained that Jon Peterson asked to borrow Petitioner's cellular phone and that he had allowed Peterson to do so on the condition that Peterson pay the bill for the time period that he had the telephone in his possession. Notwithstanding Petitioner's testimony explaining the reason for the payment, at the time Respondent completed the Amended Complaint, there was evidence to support this allegation. Another allegation in the Amended Complaint was that Petitioner directed Colleen Peterson, a County employee, to prepare personal letters for him during business hours using County equipment. This allegation was based on statements Colleen Peterson made to Investigator Von Buelow and on supporting documentation, copies of the letters, that Mrs. Peterson gave to Investigator Von Buelow. In view of Mrs. Peterson's statements and the substantiating documentation, there was evidence to support this allegation at the time the Amended Complaint was filed. Finally, the Amended Complaint alleged that Petitioner utilized the research resources of the Indian River County Attorney's Office to obtain information and materials for his son for a project unrelated to Indian River County business. This allegation was based on statements Jon Peterson gave to Investigator Von Buelow and documents Peterson provided to Investigator Von Buelow. The documents that Petitioner provided were WestLaw documents and research materials which Peterson stated were found in Petitioner's son's office at Brevard Drug Screening after he was no longer employed there. Investigator Von Buelow interviewed a legal assistant in the County Attorney's Office who confirmed that she had conducted the subject research for and at Petitioner's request. The allegations in the Complaint and Amended Complaint could not be substantiated and/or did not constitute violations of the Code of Ethics. Nonetheless, the inclusion of those allegations were reasonably based on information that Respondent obtained from reliable sources, including the Beckerdite and Von Buelow's investigative reports, the records of the pre- determination and the post-termination hearings; and depositions from other legal proceedings. On or about July 9, 1997, Respondent retained Jack B. Nichols, Esquire, to represent him in the defense of the Ethics Complaint and Amended Complaint 97-103. Mr. Nichols' regular hourly rate is $225. However, trial time is billed at $450 an hour and travel time is billed at one-half of the hourly rate or $112.50 an hour. For the period July 9, 1997, through March 23, 2000, Mr. Nichols has expended 233.70 hours on this matter. As a result of Mr. Nichols' representation, Petitioner has incurred total attorney's fees and costs of $55,576.25 and $10,296.83, respectively. These attorney's fees and costs are reasonable. However, based on the foregoing findings, it is clear that Respondent did not file the Complaint and the Amended Complaint against Petitioner with a malicious intent to injure the reputation of Petitioner by filing such complaints with knowledge that the complaints contained one or more false allegation or with reckless disregard for whether the complaints contained false allegations of fact material to a violation of the Ethics Code. Therefore, Petitioner is not entitled to an award of attorney's fees and costs from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a Final Order be entered finding that Respondent, James E. Chandler, is not liable for attorney's fees and costs and dismissing the Petition for Attorney's Fees. DONE AND ENTERED this 29th day of June, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2000. COPIES FURNISHED: Jack B. Nichols, Esquire 801 North Magnolia Avenue Suite 414 Orlando, Florida 32803 George P. Roberts, Jr., Esquire Roberts and Reynolds, P.A. 470 Columbia Drive Suite 101C West Palm Beach, Florida 33409 Sheri L. Gerety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Recommendation In view of my finding that the Petitioner has engaged in a pattern of careless conduct, I recommend that the Board issue a written reprimand to her for having engaged in the conduct as found herein. in all other respects I recommend that the complaint be dismissed in its entirety. DONE and ORDERED this 29th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether Respondent, Ideal Security Services, Inc. (“Respondent or Ideal”), retaliated against Petitioner, John Mercurio (“Petitioner”), for exercising his right to file a complaint on an alleged unlawful employment practice pursuant to section 760.10, Florida Statutes (2019).1/
Findings Of Fact Ideal is an employer as that term is defined in section 760.02(7). While the exact number of employees is not reflected in this record, the evidence established that Ideal employs greater than 15 employees. Ideal provides security officers to different locations for access control and on-site patrol. Petitioner worked for Respondent as a security officer from June 20, 2018, through February 7, 2019. At the time he was hired by Ideal, Petitioner was informed in writing of the company’s “Interchange” practice, which provides: Although employees generally are hired to work at one specific client location or facility, the company (Ideal Services, Inc.) uses its Guard Force INTERCHANGEABLY to meet its needs: In case of cancellation of any accounts, reduction or increase in hours provided, or an employee who may request a transfer. Also Ideal Services, Inc. wishes to point out that they DO NOT guarantee a full 40 hour work week. Overtime is given to employees depending on where the overtime will occur and the availability of employees to work an assignment. Ideal Services, Inc. wishes to also point out that hourly pay rates will depend on job placement as some client assigned jobs will carry higher pay rates than others. It is therefore Ideal Services, Inc.’s policy to inform all individuals who are applying for employment that Ideal Services, Inc. DOES NOT HIRE for only one site at one set pay rate . . . because both of these are subject to change. On the date he was hired, Petitioner signed a copy of the above policy statement, acknowledging that he had read and understood its contents. Petitioner’s first assignment was to provide security at a Krispy Kreme Donuts retail location, an assignment which carried a pay rate of $9.50 per hour. In July 2018, Petitioner was assigned to several other locations, in addition to the Krispy Kreme location. Those new locations were at Daytona Beach Housing Authority apartments, including the Maley, Windsor, and Trails apartment complexes. The public housing assignments carried a pay rate of $8.50 per hour. As of August 2018, Petitioner was no longer assigned to the Krispy Kreme location, but rather was working exclusively at the public housing locations. In December 2018, another Ideal security guard was newly assigned to the same public housing complex as Petitioner. It was clear to Petitioner that this individual was a racist based on his words and actions. While standing next to Petitioner, the new security officer referred to the building residents as "monkeys." It was clear to Petitioner that this remark was made in reference to the African-American residents of the complex. Dan Montrose, the senior security officer and Petitioner’s partner, was also within earshot when the newly assigned officer made the derogatory remark. Petitioner was stunned by the racist comment, especially since Mr. Montrose’s wife is an African-American female. Petitioner also testified that on another occasion, the new officer posted a picture of a Caucasian baby on the common area's fridge with an arrow that said, "Dan" on it, as well as a black finger/arm covering the baby's mouth which said, "Dan's wife." While Petitioner’s first impulse was to report the above racist incidents to his employer, at the request of Officer Montrose he did not immediately do so. However, while the exact date of the conversation is not of record, sometime in the second or third week of December 2018, Petitioner reported the “monkey remark” to Ideal’s Manager and CFO, Diane Cox. Ms. Cox assured Petitioner that she would discuss the racist comment with the offending security guard. Ms. Cox testified that the offending security guard was given a verbal warning for his inappropriate comment, but was not otherwise disciplined because he had worked for the company for many years without incident. When Ms. Cox spoke with the offending security guard about his inappropriate remark, she did not raise the issue of the racist picture that had been posted on the common area refrigerator. According to the testimony of Ms. Cox, this is because she had not been informed by anyone about the existence of the picture, and first became aware of it when she read Petitioner’s Complaint. Ms. Cox testified that had she been informed of the racist picture, disciplinary action would have been taken against the offending employee. Again, while the exact date is not of record, sometime in late December 2018, Petitioner requested a copy of his payroll records from Ms. Cox. While gathering the records for Petitioner, Ms. Cox discovered that Petitioner’s rate of pay had erroneously not been reduced from $9.50 per hour to $8.50 per hour when he was transferred from the Krispy Kreme location to the public housing locations. Upon discovering this accounting error, Ms. Cox informed Petitioner that effective immediately his rate of pay while on duty at the public housing locations would be adjusted to $8.50 per hour, but that Ideal would not be attempting to recoup the overpayments that had been made over the previous months, since the error had been theirs. Respondent offered in evidence payroll records which demonstrated that all Ideal security guards assigned to the public housing locations were paid at the rate of $8.50 per hour. At about the same time as Petitioner’s downward rate adjustment, another Ideal security guard requested that he be assigned an additional eight-hour shift in order to bring him to 40 hours per week. In an attempt to accommodate this request, Ms. Cox contacted several of the Ideal security guards, including Petitioner, to inquire as to whether any wished to relinquish an eight-hour shift. Petitioner advised Ms. Cox that he did not want to give up an eight-hour shift, and that request was honored by Ideal. The timing of Petitioner’s reporting of the racist remarks to Ms. Cox; Petitioner being informed that his hourly rate was being reduced; and Petitioner being invited to give up a work shift; is unfortunate. Because of the temporal proximity of these events, it is understandable that Petitioner concluded that the reduction in his pay rate and attempted reduction in his assigned hours were in retaliation of his reporting the racist remarks. However, the evidence does not prove a causal link between Petitioner's complaint and the adverse action he suffered. Rather, the credible testimony of Ms. Cox established legitimate nonretaliatory reasons for how Petitioner was treated, and there is no evidence that the reasons articulated by Ms. Cox were a pretext for retaliation. Petitioner failed to persuasively prove any incidents of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Ideal Security Services, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of January, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 16th day of January, 2020.
The Issue This proceeding commenced when Charles Siplin made his timely request for formal hearing in response to Respondent's February 11, 1986 letter denying his application for qualification and licensure as a temporary ordinary combination life and disability agent and his application for examination as "ordinary combination life including disability agent". The issue is whether Petitioner's 1978 plea of guilty to first degree manslaughter in New York is a valid ground for either compulsory or discretionary license denial. At the final hearing Mr. Siplin testified in his own behalf and no other witnesses appeared. By stipulation a joint composite exhibit was admitted into evidence, which exhibit included a Certificate of Disposition from the New York Supreme Court for the County of Bronx, a pre-sentence investigation report, New York's Certificate of Relief from Disabilities, Petitioner's Application for Examination as insurance agent and Department of Insurance denial letter. After the hearing Respondent submitted its Proposed Recommended Order with proposed findings of fact and conclusions of law. These have been considered and have been incorporated, where appropriate, in this Recommended Order. Only two findings of fact were proposed; these have both been adopted in paragraphs 2 and 3, below.
Findings Of Fact Charles Siplin is forty-five years old and currently resides in Winter Garden, Florida. He was born and raised near Orlando, the sixth of eight children. His parents worked as school bus drivers and maintained a stable self-sufficient home. Except for Charles, the Siplin siblings have not been arrested and have mostly made satisfactory social adjustments. (Joint Exhibit #1, P.S.I.) On April 14, 1978, Charles Siplin pleaded guilty to first degree manslaughter in Bronx County, New York, and was sentenced to state prison for a term of 0-15 years (Joint Exhibit #1, Certificate of Disposition). He served five years and ten months. (T-17) The crime to which Mr. Siplin pleaded guilty was the stabbing death of his wife and serious injury of his father-in-law. The incident resulted from a heated domestic quarrel over Siplin's desire to see his four year old son and his wife's demand for money for the son to attend private school. The Siplins had been separated for several months and the wife and child were living with her father. (Joint exhibit #1, P.S.I.) Charles Siplin had never been in trouble with the law before. He had a high school education and stable employment history. He served a three-year tour in the Army and was honorably discharged. From 1963 until he was indicted in 1976, he worked for the New York City Transit Authority as a bus dispatcher. (Joint Exhibit #1, P.S.I. T-14) While in prison he took advantage of various educational and training programs, including legal research, optical training, and printing, and obtained college credits in different areas. He set up programs for assisting inmates who were Vietnam veterans to upgrade their military discharges and he and an assistant represented the veteran inmates before the military boards. (T-19, 20) During his period of incarceration he worked his way from maximum security to medium, then minimum security and eventually achieved work release. He had no disciplinary violations. (T-19,20) While in prison he took classes from an insurance broker, who was a fellow inmate, and he set a personal goal of working in the insurance field when he got out and could apply for a license. (T-26) After returning to Florida in 1984, Charles Siplin obtained employment selling cars and has since been steadily employed. He currently is working in an insurance office and is managing an 80-unit apartment complex. (T-25, 27-28, Joint Exhibit #1, Department of Insurance Application for filing for Examination) On June 20, 1985, Mr. Siplin was issued a Certificate of Relief from Disabilities from the New York State Board of Parole. The certificate indicates that it is considered permanent and "...removes all legal bars and disabilities to employment, license and privilege except those imposed under Sections 265.01(4) and 400.00 of the Penal Law". (Joint exhibit #1, Certificate of Relief from Disabilities) The referenced sections of New York Law relate to possession and license to carry or possess firearms. Charles Siplin remains on parole under the supervision of a local parole officer. He is eligible to apply for early dismissal from parole in about 10 months and his total term of parole is five years. (T-23-30) Charles Siplin's attitude is summarized in the following excerpt from his testimony: "Okay, I accepted the fact that there was a crime, I was involved with it, okay. My wife died behind it, my father-in-law was hurt behind it. I'm not trying to say that didn't happen, it did happen, but I accepted it, okay? I have no -- when you say no remorse, okay, there is. I, you know, feel very bad about it. I don't feel that it's ever going to happen again in my life, because I've realized one thing. That was a crime against society, and a life was taken, you know, but I can't bring that life back. What I can do is continue to do good. I'm not saying I'm perfect, but I can do the best I can. I also feel that I'm a changed person. That was like a nightmare. Something happened in my life that night, and I can't make any excuses for it, just something happened. I hope it happens no -- I wouldn't want that to happen to anybody. It's just something that changed my whole life. But today I understand, I have a clear mind, and, you know, and it doesn't affect me, it doesn't affect my ability to think. I can be a productive citizen within any society. I feel I can go anyplace and be a productive citizen, and do the right thing and abide by the law, and I will do that. But again, I'm not perfect and I know this, but I'll try my best." He was a credible witness. While he states he enjoys sales and meeting and dealing with people (T-25,26), his case as presented through his own testimony was not a "hard sell" but rather a simple story of the catastrophic event that took a life, injured another and sent him to prison.
Findings Of Fact On November 22, 1989, T. L. James & Company, Inc. was convicted of conspiracy to suppress and eliminate competition. This is a public entity crime. T. L. James executed a Public Entity Crimes Affidavit on July 24, 1994. On the affidavit T. L. James disclosed the conviction. Pursuant to Section 287.133, Florida Statutes, the Department of management Services (DMS) shall investigate public entity crimes to determine if the convicted company should be placed on the convicted vendors' list. After receiving the affidavit from T. L. James, DMS conducted an investigation and discovered mitigating factors as defined and listed in Section 287.133, Florida Statutes. These factors are: payment of fines and damages totalling $600,000, cooperation with the officials criminally investigating and prosecuting the case, cooperation with DMS' investigation, instituting safeguards in the bid estimation process to prevent further irregularities, and providing full and accurate notice. All other facts stipulated to by the parties pursuant to the Joint Stipulation previously filed in this case are hereby adopted and incorporated by reference.
The Issue The issue for disposition is whether Petitioner, Mr. Franqui, is entitled to licensure as a real estate salesperson in the State of Florida.
Findings Of Fact Jose C. Franqui, a resident of Kissimmee, Florida, was previously licensed as a real estate broker in the State of New York until 1979. When the economy and interest rates slowed real estate sales, he moved back to his native Puerto Rico. Later, he returned to live in Florida and, on March 3, 1997, he applied to the Florida Real Estate Commission for licensure as a real estate salesperson. The application, signed by an affidavit by Mr. Franqui, includes question no. 9 which inquires whether the applicant " . . . [Has] ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. . . ." In boldface print, the question on the application form warns that the answer will be checked against local, state, and federal records and that failure to answer accurately could cause denial of licensure. Mr. Franqui answered "no" to question No.9. In 1966 in New York, Mr. Franqui was charged and convicted of carrying concealed tear gas. He was fined $200. On May 14, 1978, also in New York, after an altercation with his wife, Mr. Franqui was arrested for assault. He spent a night in jail and was released. On August 11, 1978, he pled guilty to the lesser offense of harassment and received a "conditional discharge." Neither of these incidents was disclosed by Mr. Franqui on his application for licensure. Instead, he claims he did not remember the disposition of the assault charge and that he considered the tear gas charge too remote in time to be of any consequence. The explanations do not excuse Mr. Franqui's patent disregard of the terms of the question at issue. Nor does the testimony of Mr. Umpierre, a co-worker, that ". . . Franqui is a nice, honest person . . ." obviate the fact of Mr. Franqui's falsehood.
Recommendation Based on the foregoing, it is recommended that the agency enter its final order denying Jose C. Franqui's application for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Jose C. Franqui, pro se 3511 Bonaire Boulevard Apartment 2401 Kissimmee, Florida 34741 Manuel E. Oliver, Assistant Attorney General Department of Legal Affairs Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares, Director Division of Real estate Department of Business and Professional regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 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 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
