The Issue The issues for determination are whether Respondent, Lonnie Evans, violated section 112.313(6), Florida Statutes (2008), by misusing his position by using the Chief of Police's city-owned vehicle for campaigning, and if so, what penalty should be imposed?
Findings Of Fact Lonnie Evans served as mayor of the City of Coleman for twelve years. Prior to his service as mayor, he was on the City Council for 24 years. Frank Moore was an officer with the City of Coleman Police Department prior to Lonnie Evans' first election as Mayor, and became the Coleman Chief of Police at some point after Evans' first election as mayor. Chief Moore retired in 2010, but remains employed by the City of Coleman as a reserve officer. Respondents Moore and Evans were, at all times relevant to this proceeding, subject to the requirements of chapter 112, part III, Florida Statutes, otherwise known as the Code of Ethics for Public Officers and Employees. Lonnie Evans ran for re-election as mayor in 2008, and was defeated by Eve Carruthers. The election was held on December 8, 2008. Coleman is a small town in Sumter County, Florida, with approximately 600 residents and 200 registered voters. Because of the size of the community and the nature of their jobs, Frank Moore and Lonnie Evans know each other fairly well, and are, in turn, well-known in the community. At the time relevant to this case, the police department in the City of Coleman consisted of three officers: the police chief, one additional full-time patrol officer, and one reserve officer. During at least part of the time relevant to these proceedings, the full-time patrol officer was James Dingle. On December 9, 2009, an Order Finding Probable Cause, which forms the basis for DOAH Case No. 10-1284, was filed by the Commission on Ethics. The Order Finding Probable Cause was based upon a complaint filed by James Dingle against Police Chief Moore regarding the 2008 election campaign several months after his employment was terminated by the Coleman City Council. The probable cause finding was reported in a local newspaper in January of 2010. Cynthia Martin, a City of Coleman Council member, showed the newspaper article to Timothy Bronson. Ms. Martin had run against Lonnie Evans in a previous election for mayor, and lost. As a result of Ms. Martin's encouragement, Timothy Bronson filed a complaint with the Commission against Lonnie Evans on March 3, 2010, fifteen months after the last election in which Mr. Evans was a candidate (COE Complaint No. 10-043). The complaint stated that the mayor and the chief of police had, for each election, come to the Bronson house and asked he and his mother to vote for Mayor Evans. The complaint indicated that Chief Moore had stated that if Evans was elected, then he would get to keep his job. The mayor of Coleman does not have the authority to hire or fire the police chief. Only the city council can take that action. Frank Moore continued to serve as police chief for the City of Coleman for well over a year after the election, until sometime in 2010, when he retired. Timothy Bronson and his mother, Gloria Bronson, claimed that Chief Moore would drive by their home and pull into their driveway. They would come out to the fence and speak to him. From their position on the other side of the fence from the car, they claimed that, on one occasion, they could see campaign signs for Lonnie Evans in the back floorboard of the patrol car. Timothy Bronson also testified that on one occasion, Lonnie Evans was in the patrol car with Chief Moore, and asked his mother to vote for him. Mrs. Bronson did not testify to any such request by Lonnie Evans, and testified that when Frank Moore came to the house, Lonnie Evans was not with him. In his taped interview, Timothy Bronson recalled that Chief Moore was driving a white unmarked car, but at hearing insisted that the car Chief Moore drove on these occasions was gray. Mrs. Bronson testified that the car was either white or "brownish." Chief Moore acknowledged that he sometimes drove by the Bronson home, usually in response to a complaint by Mrs. Bronson, such as people speeding on her street. He agreed that he sometimes stopped and spoke to her and her son, but denied talking about the mayoral race. He also flatly denied ever having Lonnie Evans in his patrol car at the Bronson home. The patrol cars have dark tinted windows in the back, and the view is obstructed by both the tint and the barrier separating the front and back seats. It is unlikely that either of the Bronsons would be able to see signs in the floorboard of the backseat from a location on the other side of the fence from the car. Mrs. Bronson admitted at hearing that she suffers from short-term memory loss as a result of a medical event. On April 14, 2010, Lucy Burnette also filed a complaint against Lonnie Evans with the Commission on Ethics. In her complaint (Ethics Complaint 10-074), she claimed that Mayor Evans came with Chief Moore, in the police car while Chief Moore was in uniform, to the local fruit stand and asked her to vote for him. Ms. Burnette did not file a complaint against Chief Moore. The complaint was written out by Cynthia Martin, while Ms. Burnette volunteered at the fruit stand. She acknowledged at hearing that some of the statements contained in the written statement were not true, and she wished that she had read the statement more closely before she signed it. For example, the statement in her complaint that "the former mayor asked me to vote for him while he was with the chief of police, in uniform" was not true. According to Ms. Burnette, Mr. Evans did not get out of the car and did not speak to her. Ms. Burnette testified that Chief Moore and Mayor Evans came to the fruit stand in a gray city police car. Mayor Evans was in the passenger seat. Chief Moore got out of the car, according to Ms. Burnette, and told her she needed to talk to Mayor Evans about what she wanted and she could possibly get it. The only indication as to when this incident supposedly occurred was that it happened just before the 2008 election. Ms. Burnette had an ongoing issue with the City of Coleman over her attempts to run a deli or barbeque on her property. At one point, while she claimed she was not a resident of Coleman, Chief Moore had been directed to "shut her down." She claimed that she wanted, but did not need, a license to operate, and that Chief Moore told her to talk to the mayor and he could help her get the license she sought. Although the record is unclear, it appears that her licensure problem exists because her property is not zoned for commercial use, and that in order for her to get a license, she would have to seek a variance from the city council. In any event, Mayor Evans does not issue licenses or direct them to be issued. While he may have had some influence on the decision- making process, the comment made by Chief Moore, if in fact he made it, made no reference to the election or voting for Mayor Evans. Ms. Burnette simply made the assumption that Chief Moore was implying that a vote for Mayor Evans would help Ms. Burnette's efforts to receive a license. She even referred to Chief Moore's statement as some sort of bribe by Mayor Evans, delivered through Chief Moore. Chief Moore often stopped by the fruit stand on his way home from work to buy some fruit. Lucy Burnette often complained to him about her problems related to getting a license when he stopped by. He testified that he told her, on more than one occasion, that she should talk to Mayor Evans or members of the city council about her problem, but did not talk to her about the election or ask her for votes. His testimony is credited. Lucy Burnette's written complaint indicates that there were witnesses to Chief Moore and Mayor Evans coming to the fruit stand in the police car. Investigator Maolli from the Commission on Ethics was unable to locate any witnesses to corroborate her account. On April 14, 2010, Ronnie Owens filed complaints with the Commission on Ethics against both Chief Moore and Mayor Evans (COE Complaint Nos. 10-075 and 10-076). According to Mr. Owens, Cynthia Martin approached Mr. Owens and told him about "the election thing," and asked him if he saw Chief Moore and Lonnie Evans in the car together. She asked him to file complaints with the Commission on Ethics, and actually wrote out the complaints for him to sign. Prior to Ms. Martin approaching him, Mr. Owens was not aware that there was any problem with the mayor and the police chief campaigning while on duty. He admitted that he filed the complaints after he had a "run-in" with Chief Moore over an incident that took place at a local store. The City of Coleman is bisected by a railroad track. Residents living in the neighborhood on the west side of the track are predominately African-American. This area of the town is sometimes referred to as "the quarters." It is not unusual for some residents of the quarters to sit at a table in a lot on the corner, or on someone's front porch, and play cards or dominos. Mr. Owens claims that prior to the election, he and some other men were sitting at Mr. Robert T's house playing dominos. Mayor Evans and Chief Moore drove up in the gray Crown Vic and walked over to the men, and Chief Moore asked them to support Lonnie Evans in his election. One of the men asked Evans for a campaign sign, and Evans indicated he did not have any with him, but would bring one back. Mr. Owens testified that Lonnie Evans later returned, in his truck, and gave a campaign sign to one of the men. Mr. Owens stated that there were five men present when Mayor Evans and Chief Moore came by the quarters. None of the other men testified at hearing, and Investigator Maolli was unable to find any who could corroborate that Evans and Moore came to the quarters in the police car while Moore was in uniform. Each incident reported by the Bronsons, Ms. Burnette, and Mr. Owens involved the use of a city-owned police car while campaigning. The City of Coleman owns three police cars: a marked patrol car, a white Crown Victoria, and a gray Crown Victoria. The passenger compartment of the police cars contains a computer, printer, video system, radar unit, and other equipment. By necessity, this equipment takes up space not normally filled in a regular vehicle. The City Council had approved Chief Moore's use of a car as a "take home" vehicle, and he used the white Crown Victoria almost exclusively. He drove the white police car back and forth to work from his home in Cedar Hill. He testified credibly that he was allowed to make stops in the city car, for example to pick up a grocery item, on his way to and from work. It was not permissible to use the car for personal entertainment or trips. Chief Moore also drove his personal car, a Buick Lucerne. Lonnie Evans stopped driving, at the urging of his wife and son, by either September or early October of 2008, because of his declining eyesight. As a consequence, he did not drive during the 2008 campaign. He was driven to campaign by his wife, Carolyn, in their red Jeep SUV, by a member of the City Council and former postmistress Vergie Everett (who passed away in February of 2010) in her Cadillac, or on one occasion, by Chief Moore in his privately-owned Buick. Both men testified credibly that when Chief Moore drove Mr. Evans, it was on a weekend and Chief Moore was dressed in jeans and a t-shirt. It is doubtful that Lonnie Evans would have returned to the quarters driving his own truck, as Mr. Owens testified. It is more likely that when he campaigned, he was being driven by his wife in their SUV, and that he took the campaign sign out of the back of the SUV. Both men also testified that there was one occasion when Lonnie Evans rode in the front seat of the white police car while it was driven by Chief Moore. A benefit was held to help Cleveland Williams, a former member of the city council, who had become disabled. After the benefit, the proceeds were counted at City Hall and placed in an envelope for delivery. Mayor Evans accompanied Chief Moore to deliver the funds raised at the benefit. The two men rode past the location in the quarters where the men played dominos on their way to Mr. Williams' home, but did not stop. Because of the amount of equipment and the "accumulated mess" in the police car, Mayor Evans found it exceedingly uncomfortable and was emphatic that he would not repeat the experience. With the exception of one of the men in the quarters requesting a sign, there is no claim that at any time signs or flyers or campaign literature of any kind were distributed to any of the complainants. Based on the totality of the evidence presented, there is not clear and convincing evidence that Mayor Evans or Chief Moore ever used a city vehicle to campaign during the December 2008 election.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report finding that no violation of section 112.313(6) has been demonstrated. DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2011.
Findings Of Fact Petitioner, Aaron Attias ("Attias"), worked for the town of Bay Harbor, Florida, from June, 1977 to April, 1992, as a tollman in Bay Harbor Island. Pursuant to a rule of the town of Bay Harbor, Attias was required to collect a thirty-five cent toll per automobile. Uniformed police officers in marked police cars were exempt from the toll; however, police officers not in uniform and in unmarked cars were charged the toll. In April, 1992, a woman pulled up to Attias' toll booth and told him she had just been robbed and she had no money to pay the toll. Attias paid her toll, told her to pull over to the side of the road, and called the Bay Harbor Police. Allen Block, a police officer, for Bay Harbor, was dispatched to the toll facility to investigate the robbery. He learned that the crime occurred in North Miami and, thus, should be investigated by the North Miami Police. A uniformed, female police officer in a marked police car pulled up to the toll booth. The officer was not a Bay Harbor police officer. Attias allowed her to pass without paying the toll because she was in uniform and in a marked car. Approximately twenty minutes later, a motorist in an unmarked car pulled up to the toll booth and identified himself as a police officer. Attias charged him the thirty-five cent toll. The officer paid the toll; however, based on the motorist's demeanor, Attias felt that he didn't like having to pay the toll. Attias gave the officer a receipt. Later, Officer Block and Sergeant Bateman came to the toll facility and spoke with Attias' supervisor and advised him they were there to arrest Attias. Attias' supervisor advised him the police wanted to see him. Attias put his money box in the vault and met the police officers in the hallway leading to the main toll facility. There is conflicting testimony concerning what happened after Officer Block and Sergeant Bateman met with Attias. According to Officer Block, Attias refused to speak to the police, grabbed Sergeant Bateman and pushed him with both hands against the wall. Officer Block and Sergeant Bateman informed him he was under arrest for obstruction of justice. This charge was because Attias had charged the North Miami police officer the thirty-five cent toll. According to Attias, he asked the policemen what they wanted, they began to crowd him, and his shoulder touched Sergeant Bateman. Attias testified that he did not push Sergeant Bateman. Having judged the demeanor and the credibility of the witnesses, I find that Attias did push Sergeant Bateman with both hands, knocking him against the wall. The pushing was not done in self-defense or in defense of another. On August 12, 1993, Attias applied for a Class "D" Security Officer license with the Department of State (Department). By letter dated November 24, 1993, the Department denied his application, citing as grounds Section 493.6118(1)(j), Florida Statutes. Other than his arrest for the incident at issue, Attias has never been arrested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Aaron Attias' application for a Class "D" Security Officer license. DONE AND ENTERED this 18th day of April, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-7159S To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the Petitioner's proposed finding of fact: Petitioner's Proposed Finding of Fact. Petitioner's unnumbered finding of fact on page 2 of his proposed recommended order is rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Alan S. Fishman, Esquire Fishman & Goldstone Suite 202 2300 West Sample Road Pompano Beach, Florida 33073 Henri C. Cawthon, Esquire Division of Licensing The Capitol, MS-4 Tallahassee, Florida Honorable Jim Smith Secretary of State The Capitol 32399-0250 Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Return on Investment The respondent Lake County Service Corporation is a private water and wastewater treatment system which provides water and sewer service to residents of Valencia Terrace near Leesburg in Lake County, Florida. The respondent utility is entirely owned by First Federal Savings and Loan Association of Lake County, which is the sole supplier of funds to the utility. The respondent utility has not had a rate increase since 1972 and has been operating at a loss. Inasmuch as the First Federal Savings and Loan Association is the sole supplier of funds and the 100 percent owner of the utility, it is appropriate to use the capital structure of that Savings and Loan Association to determine a reasonable and proper cost of capital or rate of return on investment for the respondent utility. However, adjustments should be made to the capital structure of the Savings and Loan institution by removing short-term debts and liabilities (such as customer savings of less than one year) since they are subject to demand withdrawals and would be inappropriate for inclusion. After short-term maturities or debts are adjusted out, the capital structure of the financial institution resembles more closely that of a utility. After adjustments, the capital structure of the parent company was made up of 85.04 percent debt and 14.96 percent equity. The average cost of debt was 9.29 percent and the appropriate cost of equity was 17 percent, based upon a leverage scale developed by the PSC in Order No. 10603, Docket Number 820006-WS, issued on February 17, 1982. Based upon the adjusted capital structure of the Savings and Loan Association and the utilization of the leverage formula, the appropriate weighted cost of capital for the respondent utility is 10.44 percent. A rate of return on investment of 4 percent, as suggested by the petitioner, is not reasonable or appropriate in today's market place. A totally riskless investment would render a return from 8 percent (short-term) to 11 percent (long-term). Quality of Service The respondent utility's plant facilities were inspected by a PSC engineer. The utility has two wells, a primary well and an auxiliary or backup well. The auxiliary well was found to contain a small amount of dissolved iron. This well is not used as a primary water source, but is used only for fires, etc. Both wells comply with the Department of Environmental Regulation's (DER) water quality standards and requirements. Neither the water nor the sewer plants operated by the utility are under citation by the DER, and there are no outstanding corrective orders against these plants. The water tank is "blown out" twice a month and all pipes utilized by the utility are of PVC material. Three customers testified that they had problems with the quality of water and service provided by the utility. On occasion, they have found the water coming into their homes to be greatly discolored. Rust spots or stains have been observed on sidewalks and driveways and water pressure has varied. Ms. Holland has experienced problems with her laundry, primarily with white articles of clothing turning a yellow color after a period of time. She has also noticed a "pesticide smell" in her water, and now buys bottled water for consumption by her family. The caretaker for the respondent's water and sewer system, who spends six days a week in Valencia Terrace, has heard no complaints from the residents regarding service or quality of water.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that an overall return on investment in the amount of 10.44 percent is reasonable and appropriate; the quality of water and sewer services provided by the utility to its customers is safe, efficient and sufficient; and the respondent utility be authorized to increase its rates for water and sewer services in accordance with the PSC's Notice of Proposed Agency Action. RESPECTFULLY SUBMITTED and ENTERED this 15th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983. COPIES FURNISHED: Fredric W. Holland 1619 Sailfish Avenue Leesburg, Florida 32748 M. Roberta Christ, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Paul K. Mueller Lake County Service Corporation Post Office Box 420 Leesburg, Florida 32748 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joseph P. Cresse, Chairman Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact Based on all the evidence, the following facts are determined: At all times relevant hereto, respondent, Glenn C. Mingledorff, was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-25390 on June 13, 1980. When the events herein occurred, Mingledorff was employed as a uniformed highway patrolman with the Florida Highway Patrol (FHP). He resigned from the FHP effective October 26, 1984 and is no longer in the law enforcement profession. Shortly after midnight on February 5, 1983, respondent was on duty in Palm Beach County. When the following events occurred he was transporting two DWI arrestees to a local Palm Beach County jail. While driving north on I-95, he observed a vehicle with three occupants swerve into the lane in front of him. After tailing the vehicle a short distance, and noticing that it was "swerving" on occasion, Mingledorff stopped the vehicle. The driver was Nancy Lynn Pearson, a young female whose speech was slurred, and who smelled of alcohol. She was arrested for suspected driving under the influence of alcohol. Mingledorff drove her to a nearby "Batmobile" where she was given a breathalyzer test and asked to perform certain coordination tests. While these tests were being performed, Mingledorff transported the two male arrestees to a local jail. Pearson "blew" a .14 on the breathalyzer machine, which was above the .10 legal limits, and did not "adequately" perform the coordination tests. When Mingledorff returned to the Batmobile approximately an hour and a half later, he handcuffed Pearson with her hands in the front, and placed her in the back seat of his FHP car. He then drove Pearson to the Lake Worth women's facility which was approximately twenty minutes away. During the trip to the facility, Pearson began to cry, and Mingledorff attempted to comfort her by explaining what would happen after she reached the facility. He also told her she was "sweet" and "cute," that she had a "nice shape," and suggested that they might go out sometime in the future for dinner. When the two arrived at the Lake Worth facility, it was between 4 a.m. and 6 a.m. in the morning. Mingledorff parked the car approximately twenty feet from the entrance to the jail. He then let Pearson out of the car, and after she had walked a few feet, told her he had to frisk her. Although the testimony is conflicting at this point, the more credible and persuasive testimony establishes the following version of events. Mingledorff asked her to extend her handcuffed hands to the front, and then reached down to her ankles and began patting her up the front side of her legs. When he got to her crotch, he "felt around" for a few seconds. Mingledorff then went up to her breasts and squeezed them momentarily. After going to her back side, he squeezed her buttocks during the pat-down process. Pearson did not say anything while Mingledorff frisked her, nor did she say anything when she was taken into the jail. However, about a month later she saw a highway patrolman named Davis at a local speedway, who she mistook for Mingledorff, and complained to him about the frisk. Davis then told local FHP officials. Mingledorff stated that he routinely frisked all arrestees for weapons and drugs, regardless of whether they were male or female. However, through credible testimony it was shown that a "hands-on" search of a female detainee by Mingledorff was inappropriate under the circumstances and contrary to FHP policy. More specifically, it was established that a female detainee is not searched by a male trooper unless the trooper "feels there's a threat to his well-being." Here there was none. Mingledorff should have taken only her purse and any other belongings and left the responsibility of frisking the prisoner to the female attendant at the jail. On the afternoon of May 23, 1984, respondent was on duty as a highway patrolman on I-95 in Palm Beach County. He came up on a vehicle which had spun around in a near-accident and was facing on-coming traffic. The vehicle was operated by Siham Caceres, a then unmarried young female. Caceres was extremely nervous and upset from her near-accident, and was unable to drive her vehicle to the side of the road. Mingledorff directed her to sit in the right front seat of his patrol car until she was calm enough to proceed on her trip. The two sat in his car for approximately ten minutes or so. During that time, Mingledorff, who was in the driver's seat, acknowledged that he briefly reached over and touched Caceres' arm to generate her "circulation." Although he denied any other contact, it is found that Caceres' testimony is more credible and that Mingledorff then reached inside Caceres' sun dress and rubbed her breasts. He also rubbed her crotch area momentarily. Caceres did not encourage or consent to this activity. She did not receive a ticket and was allowed to leave a few minutes later. Caceres did not immediately tell anyone about the incident since she was embarrassed, and she was fearful her brothers would "get" Mingledorff if they learned what had hap- pened. She later told her fiancee, who then reported the matter to FHP officials.
The Issue The issues to be resolved in this proceeding, concern whether the Respondent facility's license to operate a limited mental health assisted living facility should be revoked, and an administrative fine imposed, for alleged violations of Sections 400.428(1) and 400.426(8), Florida Statutes; and Rules 58A-5.0181(1)(g), 58A-5.029(3)(c), and 58A-5.0181(1)(b), Florida Administrative Code.
Findings Of Fact Resident No. one, in the Respondent's facility, had a diagnosis of a bipolar disorder, with psychotic features. She had a history of mania and medication non-compliance as well as having a past diagnosis of Hepatitis "C". The treatment and therapies recorded as being applicable to that resident were medication management, intensive case management and out-patient psychiatric management. Resident No. one had been frequently out of compliance with her medication regimen since approximately November 2000. The Agency received a complaint that Resident No. one had made threats against another resident, including threatening to kill that resident, or to maim him, and that Resident No. one had offered another resident money to kill Resident No. two. The Administrator, David Davis, was aware that Resident No. one had occasionally made threats and that on one or two occasions had possession of a knife. When Mr. Davis learned of her possession of a knife, he demanded that it be relinquished to him by Resident No. one, and, on each occasion she had readily complied. Resident No. one, who purportedly made the threats against Resident No. two (A.A.), were "sweethearts." They had known each other for many years. The two of them frequently argued and the occasion of the threats being made was essentially a "lover's quarrel," as essentially described by Mr. Davis. Mr. Davis opined that Resident No. one's threats were not to be taken seriously. She had never made any attempt to harm or kill anyone. The third resident, whom she allegedly solicited and offered money if he would kill Resident No. two (A.A.), denied that she had ever offered him any money to kill anyone. Administrator Davis testified that Resident No. one (L.P.) never actually made any attempt to harm or kill anyone and this was corroborated by L.P.'s twin sister (C.H.), who visited L.P. at least five times per week when she was in the Respondent's facility. She stated that her sister had never had any tendency towards violence and had never harmed anyone. She regarded the alleged threats as idle threats, if they occurred. C.H. found that the Respondent's facility took good care of her twin sister and she was very pleased with the way they coped with L.P. with regard to her bipolar disorder and her mood swings. In any event, on the same day of the Petitioner's inspection of the facility, L.P., Resident No. one, was committed to an appropriate facility pursuant to the "Baker Act." After the Agency had completed its survey, it sent a moratorium to the Respondent preventing it from accepting new residents. After Resident No. one, L.P., was released from her Baker Act commitment, she returned to the Respondent's facility for a brief period but was given a "thirty day notice" to leave the facility after which she never returned. Thereafter, by letter of May 11, 2001, the Respondent was notified by Petitioner that all deficiencies had been corrected and that the facility was no longer under a moratorium for new admissions. See Respondent's Exhibit 1 in evidence. Since that time, the facility has continued its normal, day-to-day operation without incident or violation of record. Despite the threat or threats made by Resident No. one, Mr. Davis of the administrative staff, was not overly concerned about the threats because of his extensive experience with this resident and his knowledge of the fact that she had no history of violent behavior. He was aware that she had refused her psychotropic medications and, according to the pertinent rules, had reported that fact to the mental health case manager for Resident No. one.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Agency for Health Care Administration establishing the two violations referenced in the above-concluded particulars and imposing a $500.00 fine. It is further RECOMMENDED that in all other particulars the Administrative Complaint be dismissed. DONE AND ENTERED this 28th day of December, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 28th day of December, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Stop No. 3 Tallahassee, Florida 32308-5403 Richard P. Warfield, Esquire 201 East Government Street Pensacola, Florida 32501 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Must the evidence obtained as a result of the stop, investigation, and arrest of Respondent, Joshua Perrella, on January 11, 2011, be excluded from evidence for violation of Article I, section 12, of the Florida Constitution and Amendment Four of the United States Constitution? Did Mr. Perrella unlawfully drive a vehicle while under the influence of alcoholic beverages; any chemical substance specified in section 877.111, Florida Statutes (2011)1/; or any substance controlled under chapter 893, Florida Statutes, to the extent that his normal facilities were impaired? If Mr. Perrella drove while impaired by the influence of alcoholic beverages, a specified chemical substance, or a controlled substance, did that conduct violate sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b)? If Mr. Perrella violated the above statutes and rules, should his correctional officer certificate be revoked or some other penalty be imposed?
Findings Of Fact Parties and Background Mr. Perrella is a correctional officer certified by the Criminal Justice Standards and Training Commission. At all times material to this matter, the Florida Department of Corrections, Region Three, employed Mr. Perrella at Polk Correctional Institute. The management of Polk Correctional Institute values Mr. Perrella and considers him an asset to the institution. Mr. Perrella is, in the words of Warden Eduardo Rivero, "a very loyal, dedicated officer. He's a hard worker." Mr. Perrella's supervisor of five years, Captain Jeffrey Robinson, relies upon and trusts Mr. Perrella. After the arrest that is the subject of this proceeding, Mr. Perrella entered into and completed a six-session counseling program for substance abuse. The Commission has sanctioned Mr. Perrella before. On May 9, 2006, it issued a Final Order imposing a six-month period of probation on Mr. Perrella. The terms of probation included a requirement that Mr. Perrella provide the Commission with proof that he completed an approved substance abuse counseling program before the probationary period ended. The Commission is an integral participant in the training and discipline of law enforcement officers in Florida. It establishes uniform minimum training standards for officers in the various criminal justice disciplines. § 943.12(5), Fla. Stat. The Legislature charged the Commission with consulting and cooperating with the state, municipalities, and political subdivisions of the state in the development of law enforcement training and education. § 943.12(6), Fla. Stat. The Commission establishes minimum curricular requirements for criminal justice training schools. § 943.12(8), Fla. Stat. The facts that are the subject of the charges in the Administrative Complaint were also the basis of prosecutions for driving under the influence (DUI) and careless driving in Polk County, Case Nos. TT11-000062-LD and CI11-000878-LD. The facts that are the subject of the Motion in Limine in this case were the basis of a Motion to Dismiss in that case. The court issued an order granting the motion and dismissing all charges. That order stated, "the State Attorney conceded that the motion was well-founded and stipulated to the granting of the Defendant's motion to dismiss." Stop of Mr. Perrella On January 11, 2011, Mr. Perrella was driving his truck south on Florida Avenue in Lakeland, Florida, around one o'clock a.m. Mr. Perrella turned right from Florida Avenue to travel west on Pipkin Road.2/ Florida Avenue is a four-lane road, with a turning lane for the turn onto Pipkin. There were no cars near Mr. Perrella's truck when he made the turn other than the car of Lakeland Police Officer Tyler Anderson who was many yards behind Mr. Perrella. Mr. Perrella momentarily crossed for a very short distance from the Florida Avenue turn lane into the adjacent lane of Pipkin Road as he made the turn.3/ There were no cars nearby. Mr. Perrella was driving within the speed limit. He was not driving erratically. Florida Avenue is within the city limits of Lakeland where it meets Pipkin Road. A small corner, less than 50 feet, of Pipkin Road is within the Lakeland city limits at the Florida Avenue intersection. After that, Pipkin Road is in Polk County, outside the Lakeland city limits. The location of the city boundaries is common knowledge among Lakeland police officers. On January 11, 2011, Officer Anderson was fully aware of where the city limits ended at the Florida Avenue/Pipkin Road intersection. At the time Officer Anderson left the city limits of Lakeland, he had not observed any behavior by Mr. Perrella that indicated to him he was observing a felony, a misdemeanor involving breach of the peace, driving while under the influence, or reckless driving. Officer Anderson followed Mr. Perrella for approximately ten blocks down Pipkin Avenue to the 1000 block. Officer Anderson deliberately followed Mr. Perrella with full knowledge that he was outside of his jurisdiction. On Pipkin Avenue, outside the City of Lakeland boundaries, Officer Anderson observed driving patterns that made him suspect that Mr. Perrella was impaired. Officer Anderson's dashboard video camera recorded the events. Mr. Perrella's recorded actions consisted primarily of Mr. Perrella moving from side to side within the limits of his lane. Mr. Perrella did not enter another lane of traffic, leave his lane, speed, or at any time take actions that produced a risk of accident or injury. Around the 1000 block of Pipkin Road, Officer Anderson stopped Mr. Perrella. When Officer Anderson spoke to Mr. Perrella, he smelled alcohol.4/ Officer Anderson did not utter the words, "you are under arrest" to Mr. Perrella immediately after stopping him. But from the point that Officer Anderson pulled Mr. Perrella over, Mr. Perrella was detained. He was not free to go. After stopping Mr. Perrella, Officer Anderson called Lakeland City Police Officers Eades and Cortez to assist him. Officer Anderson was fully aware that he was outside of the City of Lakeland jurisdiction. Officer Anderson and his fellow Lakeland police officers began an investigation of Mr. Perrella, which included interrogating him and administering a number of field sobriety tests to Mr. Perrella. Mr. Perrella refused to take a blood alcohol test. Based on the test results, Mr. Perrella's appearance, the smell of alcohol, and Mr. Perrella's conduct, Officer Anderson arrested Mr. Perrella and transported him to the Lakeland Police Department for processing. Officer Anderson deliberately chose to follow, stop, investigate, and arrest Mr. Perrella knowing full well that he was outside of his jurisdiction. All of the officers who participated in the stop, investigation, and arrest of Mr. Perrella were Lakeland police officers. Officer Anderson made no effort to contact or seek assistance from the Polk County Sherriff's Office. He also made no effort to notify the Polk County Sherriff's Office that he had followed a suspect from Lakeland's jurisdiction into the Sherriff's exclusive jurisdiction. Mutual Aid Agreement At all times material to this matter, the City of Lakeland was party to the Polk County Mutual Aid Agreement (Agreement) with the Sheriff of Polk County, Florida. Paragraph 2(a) of the Agreement provides: Whenever a law enforcement officer observes . . . DUI [driving while impaired] or Reckless Driving, occurring in a cooperating agency's jurisdiction, the law enforcement officer may physically arrest the perpetrator and preserve the crime scene. Control of both the person apprehended and the crime scene shall be relinquished to the first available officer from the agency having jurisdiction. Article 4 of the Agreement provides than any officer who provides mutual aid and assistance in another jurisdiction "shall notify the on-duty communications supervisor in the jurisdiction being assisted as soon as possible." Article 5(a) of the Agreement permits officers investigating offenses that occurred in their jurisdiction to make related arrests in a cooperating agency's jurisdiction. It requires: "Notice of an officer's intention to make such an arrest shall be given to the on-duty communications supervisor for the cooperating agency in sufficient time to allow the cooperating agency to participate in the arrest, unless exigent circumstances exist, in which event notice shall be given immediately thereafter." Good Faith Officer Anderson had read the Agreement. He knew its contents. He was familiar with the Agreement when he chose to follow, stop, investigate, and arrest Mr. Perrella. In fact, Officer Anderson considered the Agreement in his decision to follow and stop Mr. Perrella. He used his own personal interpretation to justify his decision. Officer Anderson was personally sensitized to the importance of jurisdictional boundaries in his job. He had been reprimanded for leaving the Lakeland jurisdiction in his marked police car. Officer Anderson was well aware when he chose to follow Mr. Perrella outside the city limits that he was leaving his jurisdiction. He was not investigating an offense that occurred in his Lakeland jurisdiction. Officer Anderson proceeded deliberately beyond his jurisdiction, rationalizing his actions, including the stop and investigation of Mr. Perrella, on his personal decision to interpret the plain language of the Agreement in a way to permit and justify his activities. He also chose not to provide the notice clearly required by the Agreement. Officer Anderson knowingly and deliberately did not follow the requirements of the Agreement. Deterrence Officer Anderson's conduct is important beyond this individual case. He is a very active DUI enforcement officer and part of a DUI task force. He has stopped nearly 300 people for DUI enforcement and participated in over 500 DUI investigations. He handles seven-to-15 DUI investigations per month. His conduct is also important to the Commission because of its role in the training and education of law enforcement officers.
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 dismissing the Administrative Complaint. DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 11th day of June, 2013.
The Issue The issue to be resolved in this proceeding is whether Respondent discriminated against Petitioner based upon his handicap in violation of the Florida Civil Rights Act of 1992, as amended ("FCRA"), more specifically Section 760.10, Florida Statutes (2004).2/
Findings Of Fact Petitioner, Dana D. Ripley, was, at all times relevant to this proceeding, certified by the Criminal Justice Standards and Training Commission as a law enforcement officer. He was employed as a police officer by the Lake City Police Department from 1997 until March 2002. On March 15, 2002, Mr. Ripley completed a sworn "pre- application" for a deputy sheriff's position with the PCSO. The pre-application is used as a screening device to reject candidates who are ineligible for employment with the PCSO, such as persons with felony convictions or activities related to illegal drugs. The pre-application asked a series of questions regarding criminal convictions and drug activities. One of the questions was, "Have you ever sold, purchased or offered for sale any illegal drug?" Mr. Ripley circled the answer, "Yes." He indicated that he had possessed steroids "5 to 10 times," the last time being in 1994. In the space provided in the pre- application to explain any "yes" answers, Mr. Ripley wrote, "During my years in university [sic] I purchased and used anabolic steroids to assist my athletic pursuits while in school." Cpl. B. J. Lyons, the PCSO background investigator who oversaw Mr. Ripley's application, testified that the answers regarding steroids were a "concern," but not alone sufficient to stop the application process. As part of the pre-application process, Mr. Ripley attested that he had read the job duties and functions for the deputy sheriff's position and was "capable of performing the duties of the job as described with or without a reasonable accommodation." Nowhere in his pre-application or full application did Mr. Ripley indicate that he had a disability, an impairment of a major life function, or the need for any accommodation. Having met the criteria on the pre-application, albeit with one "concern," Mr. Ripley went on to complete the full application process, which included signing waivers and obtaining a physician's clearance to take a physical abilities test. On October 30, 2002, Mr. Ripley's physician certified that there was "no unreasonable danger of harm" in Mr. Ripley's undergoing the physical abilities test "with/without a reasonable accommodation." On November 25, 2002, Mr. Ripley was given a "Notice of Conditional Offer of Employment" by the PCSO. The conditional offer stated that, if Mr. Ripley satisfactorily completed psychological testing, a psychological interview, a drug test, and a medical examination, he would be eligible for appointment to a deputy sheriff's position by the sheriff. The conditional offer expressly stated that placement in the applicant pool does not assure that the sheriff would appoint the applicant to a deputy sheriff's position. On November 26, 2002, Mr. Ripley took the PCSO's physical abilities test, in which he went through a test course that included running 220 yards, climbing a wall, running over hurdles, crawling under obstacles, dragging a 150-pound dummy a distance of 50 feet, and simulated firing of a police weapon. The maximum acceptable time for completing the test course was six minutes and 30 seconds. Mr. Ripley completed the course in two minutes and 50 seconds, which Cpl. Lyons termed a very good time. Also on November 26, 2002, Mr. Ripley sat for a polygraph examination conducted by Allen Stein, an independent polygraph examiner under contract with the PCSO. Mr. Stein's report stated the following in relevant part: During the pretest interview, Mr. Ripley said he resigned from the Lake City Police Department following a discussion with the Chief of Police in which they agreed a change of scenery would be desirable for him. Mr. Ripley had been absent from work for about a nine month period because of three colon surgeries because of a colitis condition. Following his return to duty, he had an amnesia episode while on duty, which resulted in the meeting with the Chief. It was suggested to Mr. Ripley that the City Manager wanted him to be terminated. In an earlier instance, he fainted as a result of dehydration resulting from the removal of a large part of his large intestine. A blood test was done after he had fainted which disclosed prohibited substances in his system. He had neglected to tell his supervisor about the various controlled substances that he had to take to assist in weaning him from the narcotics that had been prescribed for him following the surgeries. In both cases mentioned above, internal affairs investigations were conducted that resulted in a written counseling and then, the requested resignation. He resigned in March 2002. Mr. Ripley said he has operated a motor vehicle not more than ten times after having consumed enough alcoholic beverages that if stopped, he might have been charged with driving under the influence. The last time was in June 2002. Mr. Ripley said that in 1988 through 1996, he took steroids to assist him in competing in bodybuilding and power weight lifting events. He consumed about two cycles per year. He estimated that he had spent about $800.00 to purchase steroids. Cpl. Lyons was concerned about several of the statements Mr. Ripley made to Mr. Stein during the pretest interview. He took the "change of scenery" in the conversation with the police chief to mean that Mr. Ripley should quit the Lake City Police Department and leave town. This conclusion was supported by the reference to the city manager's wanting Mr. Ripley terminated. Cpl. Lyons believed something was "not right" about Mr. Ripley's having an amnesia episode, but then meeting with the chief, rather than going for medical attention. Cpl. Lyons was concerned about the blood test that revealed the presence of prohibited substances in Mr. Ripley's system. Cpl. Lyons was concerned regarding Mr. Ripley's admission that he had operated a motor vehicle after consuming enough alcohol that he could have been charged with driving under the influence, particularly the admission that he had done so as recently as June 2002, which was after Mr. Ripley applied for employment with the PCSO. Finally, Cpl. Lyons noted that Mr. Ripley's statement that he took two annual cycles of steroids over a period of eight years, ending in 1996, conflicted with his statement in his pre-application that he had possessed steroids only "5 to 10 times," the last time being in 1994. On December 11, 2002, Mr. Ripley and seven other candidates sat for the PCSO's oral examination. Mr. Ripley scored 57 out of a possible 63 points, a passing score, but the lowest of the eight candidates who sat for the oral examination on that day. Cpl. Lyons was surprised at Mr. Ripley's low score because applicants who have prior law enforcement experience usually obtain higher scores on the oral examination than do inexperienced applicants. On or about November 20, 2002, Cpl. Lyons obtained from the Lake City Police Department an offense report regarding Mr. Ripley. On January 25, 2002, at around 4:00 p.m., a Lake City patrol car was dispatched "in reference to a disoriented person running around in the street in his underwear." While the officers in the patrol car were unsuccessfully searching the area to which they had been dispatched, they received a second call concerning the same person. The officers contacted the complainant, who told them she had seen a barefoot man, in long underwear and a shirt, walking down the middle of a residential street mumbling to himself and stumbling around. She saw the man fall several times and was worried he would be run over by a car. She and her son coaxed the man into sitting on their front porch until the police could arrive. The lead officer, Sgt. Marshall Sova, recognized the disoriented man as Mr. Ripley, who said he was working on a robbery case. Sgt. Sova walked Mr. Ripley to the patrol car and placed him in the back seat, told the other officer, Misty Gable, to call Columbia County EMS to the scene, then radioed his lieutenant to come to the scene. Sgt. Sova reported that Mr. Ripley was hallucinating, pointing to the empty yard next door, and telling Sgt. Sova, "There they are, go get them," believing he was seeing the men who "committed the robbery." Sgt. Sova sent Officer Gable to Mr. Ripley's residence, one street away from where he was apprehended, to make sure it was secured. Officer Gable drove to Mr. Ripley's house and found the front door standing wide open. She looked inside and saw "no fewer than two hand guns, two full gun magazines, four boxes of ammunition, two police radios, and the keys to the Lake City Police squad car that was parked in his driveway, along with household electronics such as a large TV, video game players and games, a cable box, etc., in plain view from the open front door." Officer Gable radioed a report to Sgt. Sova, who told her to wait there until he and their superior officer, Lt. Dubose, could come over to the house. Columbia County EMS arrived at the scene and carried Mr. Ripley on a stretcher to the rescue vehicle. The paramedics checked Mr. Ripley's blood sugar and found that it was low. Mr. Ripley was transported to the Lake City Medical Center. Lt. Dubose arrived and went with Sgt. Sova to Mr. Ripley's residence for the purpose of obtaining the Lake City Police Department property that Officer Gable reported was inside Mr. Ripley's open apartment. The house was in a state of complete disarray, with standing water in the bathroom. In addition to the Lake City Police Department property, the officers found several prescription drug bottles and body- building supplements. All of the prescription drug bottles were empty, including one that had been refilled with 30 pills two days prior to these events. The officers took possession of the police department property, secured Mr. Ripley's apartment, then returned to headquarters. At the hearing, Cpl. Lyons of the PCSO testified that this police report from the Lake City Police Department caused him great concern about Mr. Ripley's suitability for the position of deputy sheriff. However, nothing in the report caused him to suspect that Mr. Ripley was disabled. At the hearing, Mr. Ripley recounted his medical history and provided his version of events in Lake City. In June 2000, Mr. Ripley suffered a severe sprain of his right ankle while on duty. The medications prescribed for the pain in his ankle exacerbated a colitis condition for which Mr. Ripley was already taking medication. The aggravated colitis required three hospitalizations in the course of one month. In late August 2000, Mr. Ripley underwent surgery to remove his large intestine and rectum, then an ileoanal J-pouch anastomosis, the surgical construction of a fecal reservoir using the lower end of the small intestine. For the better part of a year after the surgery, Mr. Ripley was prescribed large doses of pain medications. He qualified for long-term disability for a period of four months and was sporadically off work for nine months. He returned to work full time in March 2001, then was back in the hospital during June 2001. At the end of July 2001, Mr. Ripley returned to work. His physicians were attempting to wean him from the opiates he was taking for pain. His physician wrote to the Lake City Police Department in support of Mr. Ripley's request for either light duty or night duty. The department placed him on night duty. Mr. Ripley testified that he struggled with his recovery for two years. He suffered from pouchitis, an inflammation of the ileal reservoir created by the reconstructive intestinal surgery. Mr. Ripley suffered from the flu in January 2002 and stated that he was in a state of dehydration when found wandering his neighborhood on January 25, 2002. On January 29, 2002, four days after the "underwear incident" described above, Mr. Ripley entered a substance abuse treatment program for his dependence on prescription medications at Shands at Vista, in Gainesville, Florida. He successfully completed the program on February 22, 2002. Mr. Ripley did not inform the PCSO of his participation in or completion of this program while he was an applicant for a deputy sheriff's position. The PCSO did not learn of Mr. Ripley's treatment until after he filed the amended charge of discrimination that initiated this proceeding. The incident of January 25, 2002, triggered an internal affairs investigation by the Lake City Police Department. At the conclusion of the investigation, several charges against Mr. Ripley were sustained, including conduct unbecoming a police officer, immoral conduct, possessing prescription drugs in a police station without notifying his supervisor, and violations of department policy on the use and secure possession of weapons. The Lake City Police Department internal investigation report form dated March 1, 2002, contains the following notation: "Actions were sustained; employee resigned prior to disciplinary action." At the hearing, Mr. Ripley's chief contentions were that the PCSO was ready and willing to hire him, that it was dissuaded from doing so entirely due to the Lake City Police Department's report of the January 25, 2002, incident, and that this incident was caused by his disability. The disability claimed by Mr. Ripley was prescription drug dependency, subsequently rehabilitated through his successful completion of the Shands substance abuse treatment program in February 2002. Accepting arguendo that Mr. Ripley's claimed disability meets the criteria of "handicap" for purposes of Subsection 760.10(1)(a), Florida Statutes, the evidence did not establish that the PCSO was ever made aware of this disability, much less based its decision not to hire Mr. Ripley on that disability. Cpl. Lyons, who was Mr. Ripley's main point of contact with the PCSO, was unaware of any of Mr. Ripley's medical records, except for the medical clearance form authorizing Mr. Ripley to take the physical abilities test. In their discussions, Mr. Ripley never mentioned to Cpl. Lyons that he had a drug dependence problem or any other disability, nor did he request any form of accommodation. Cpl. Lyons believed Mr. Ripley to be "very physically fit," as evidenced by his exceptionally good time in the physical abilities test and saw nothing that made it appear Mr. Ripley would need an accommodation. Cpl. Lyons testified that Mr. Ripley's medical condition was not considered because it could not be used as a factor in eliminating Mr. Ripley from consideration.4/ Cpl. Lyons brought Mr. Ripley's file to the attention of Lt. Dean LaChance, his superior in the PCSO's Human Resources Division. Cpl. Lyons told Lt. LaChance that one of the applicants had been seen "in his neighborhood running around in his underwear" and that Lt. LaChance might want to look at Mr. Ripley's file and make a hiring decision. Cpl. Lyons sent the file to Lt. LaChance, attaching a note that stated, "Prior [experience with] Lake City. Need to read his [polygraph report]. Also see the report from Lake City [Police Department] . . . Not the greatest pick so far." Lt. LaChance reviewed Mr. Ripley's file, including the pre-application and polygraph. Lt. LaChance recommended that Mr. Ripley's file be closed, meaning that Mr. Ripley should be removed from the pool of eligible applicants. Lt. LaChance based his recommendation on the facts that Mr. Ripley's oral examination scores were low and that "we had better applicants in the file," as well as on the "underwear incident." Lt. LaChance also noted the discrepancies regarding steroids between Mr. Ripley's polygraph examination and his pre- application. Lt. LaChance noted other problems with Mr. Ripley's polygraph: his statement that the city manager wanted him fired; the fact Mr. Ripley resigned during an open internal affairs investigation; Mr. Ripley's "change of scenery" language, which Lt. LaChance took to mean that Mr. Ripley was told to quit or be fired; and Mr. Ripley's admission that he had operated a motor vehicle at least ten times under the influence of alcohol, even while he was going through the PCSO's background investigation. Lt. LaChance never met Mr. Ripley and never spoke to him prior to the hearing in this matter. He had no knowledge that Mr. Ripley claimed a disability and saw nothing in Mr. Ripley's file to make him suspect that Mr. Ripley had a disability. He had no knowledge that Mr. Ripley had gone through a drug abuse treatment program. The only medical information available to Lt. LaChance was Mr. Ripley's polygraph statements regarding his prior surgeries. Based on Mr. Ripley's statements, Lt. LaChance considered Mr. Ripley's medical condition to have been temporary and "fixed" by his surgery. Mr. Ripley had done a "great job" on the physical abilities test, and Lt. LaChance did not consider him to be disabled in any way. Lt. LaChance testified that it is the PCSO's general practice not to hire people who have been terminated or have resigned under investigation from other law enforcement agencies. He stated that his agency has more than enough qualified applicants and has no need to hire an applicant with "the kind of baggage" that Mr. Ripley presented. Mr. Ripley believed that part of the "understanding" between him and the Lake City Police Department was that the internal investigation report of the January 25, 2002, incident would not be circulated to potential employers. This belief explains why Mr. Ripley apparently thought he could finesse the question of why he resigned with casual references to a "change of scenery," and why Mr. Ripley did not mention his prescription drug dependency and rehabilitation in his PCSO application. Based on the foregoing Findings of Fact, it is found that the PCSO had no knowledge of Mr. Ripley's claimed disability. No PCSO employee perceived Mr. Ripley as having a disability. Mr. Ripley's application file was closed based on factors unrelated to his alleged disability.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 March, 2005.
The Issue Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under the Department's jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility. Petitioner was employed in a position of trust or responsibility by Anchor House Ministries in Auburndale (Anchor) located in Polk County, Florida, an agency, as that term is defined by Section 409.175(2)(a), Florida Statutes, which housed children and required licensure by the Department. Petitioner's job required that he be screened in accordance with level 2 standards for screening set forth in Chapter 435, Florida Statutes. This screening revealed a felony conviction which disqualified Petitioner from employment in a position of trust or responsibility. Petitioner and Anchor were notified of Petitioner's disqualification. Thereafter, Petitioner was discharged from his employment with Anchor. Subsequent to being discharged by Anchor, Petitioner was employed by Lakeland Regional Medical Center (Lakeland Medical). The record is not clear if Petitioner's position with Lakeland Medical required that Petitioner be screened in accordance with Chapter 435, Florida Statutes. In any event, it appears that Petitioner was not screened as a result of his employment with Lakeland Medical. On June 4, 1992, the Grand Jurors of the State of West Virginia in and for the County of Braxton returned a 16-Count Indictment, Number 92-F-20 (Indictment), against Petitioner involving allegations of breaking and entering with the intent to steal which were alleged to have occurred between June 7, 1991, and February 19, 1992, and an allegation of aggravated robbery and felonious assault alleged to have occurred on January 7, 1992, contained in Count 10 of the Indictment. On July 14, 1992, Petitioner entered Appalachian Teen Challenge, Inc. (Appalachian) and successfully completed the long-term residential program offered by Appalachian on August 3, 1993. Thereafter, on December 21, 1993, Petitioner entered a plea of guilty to the charge of grand larceny contained in Count 10 of the Indictment, a third degree felony under Section 812.014(2)(c)1., Florida Statutes. The court accepted the plea of guilty to grand larceny and adjudicated Petitioner guilty. The State of West Virginia moved to dismiss the remaining charges contained in the Indictment. The court granted the motion and all other charges were dismissed by the court. By a Sentencing Order dated December 23, 1993, the court suspended the imposition of sentence and committed the Petitioner to the custody of the West Virginia Commissioner of Corrections as a youthful offender to be assigned to a center for youthful offenders for a period of not less than six months, nor more than two years. Time served was to be at the discretion of the superintendent of the youthful offender center where Petitioner was assigned. The court also required that Petitioner undergo a period of training programs. After successfully completing the program requirements of Anthony Center, the youthful offender center where Petitioner was assigned, the court, by order dated July 7, 1994, released Petitioner from Anthony Center and placed Petitioner on probation for a period of five years. A condition of Petitioner's probation was restitution. Since being placed on probation, Petitioner has made monthly restitution payments and continues to make restitution payments. After being placed on probation, Petitioner moved to Florida and enrolled in Southeastern Bible College where he has earned 150 hours of college credits. Petitioner's move to Florida was approved by his probation officer in West Virginia. Petitioner has maintained contact with his probation officer in West Virginia since his move to Florida. Additionally, Petitioner, until just recently, maintained his residence in West Virginia. Since moving to Florida, Petitioner has married and, with the help of his father-in-law, purchased a home. There is no evidence in the court records of West Virginia concerning Petitioner's use of illegal drugs or alcohol during the time of his troubles in 1991 and 1992. However, when asked by the exemption committee concerning the use of illegal drugs and alcohol, Petitioner candidly admitted to the exemption committee that at time of his troubles in West Virginia during 1991 and 1992, he had been involved with illegal drugs and alcohol. However, Petitioner also advised the exemption committee that he was no longer involved with illegal drugs or alcohol. Furthermore, Petitioner advised the exemption committee that he had overcome his problem with drugs and alcohol though the church and his faith in God, without being involved in Alcoholics Anonymous or Narcotics Anonymous. Likewise, Petitioner's testimony at the hearing, which I find to be credible, was that he had solved his drug and alcohol problem through the church and his faith in God, notwithstanding the testimony of Malcomb Miller or Robert King to the contrary. By order dated November 4, 1998, Petitioner's probation was discharged and terminated and Petitioner was released from the supervision of the court in West Virginia. There is sufficient evidence to show that Petitioner has been sufficiently rehabilitated to be employed in a position of trust and responsibility and that he will not present a danger if allowed to be employed in a position of trust or responsibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility. DONE AND ENTERED this 29th day of December, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 29th day of December, 1998. COPIES FURNISHED: Stanley J. Lane, pro se 212 West Park Street Lakeland, Florida 33803 Jack Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33803 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
