The Issue The issues for determination are: (1) whether Respondent violated Section 112.313(6), Florida Statutes, in misusing his official position by threatening to discontinue the City's patronage of the Complainant's business because she displayed the campaign sign of one of Respondent's opponents in her business window; and (2) if so, what penalty should be imposed.
Findings Of Fact Tom Ramiccio (Respondent) was elected to the Lake Worth City Council. He was elected mayor in 1997. On February 21, 1999, Respondent was involved in a campaign for re-election. The election was held in March and Respondent was re-elected. As Mayor of the City of Lake Worth (City of Lake Worth or City), Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Carol Dippel is a florist who owns a shop on Lake Avenue in downtown Lake Worth. Once a year there is a "street painting festival" in the downtown area. The festival was in progress on February 21, 1999. During the 1999 street painting festival, Respondent was campaigning for re-election. During the street festival, on February 21, 1999, Respondent went into Ms. Dippel's store, Lake Avenue Flowers and Balloons, because he noticed a campaign sign for his opponent in her store window. Respondent's opponent for that election was Pam Wynn. Respondent was curious about why Ms. Dippel was supporting his opponent and inquired whether he had done anything to offend her. Ms. Dippel responded that she believed that Respondent had done a good job for the City, but that she was supporting Ms. Wynn because of Respondent's position on the neon lighting ordinance. Respondent told Ms. Dippel that even if Pam Wynn were elected, there would be no change in the neon ordinance. This was because four other city commissioners supported the neon ordinance. Ms. Dippel had two neon calla lilies in her storefront and supported the rights of shop owners to use neon signs. Respondent, on the other hand, was strongly opposed to neon lights in the downtown area and had supported a recently-passed ordinance restricting the use of neon. Respondent and Ms. Dippel then proceeded to have discussion that lasted about 10 to 15 minutes. They debated Respondent's vision of a historic downtown area and also discussed the artistic merits of neon and the role of the government in limiting the individual choice and rights of property owners. The discussion between Respondent and Ms. Dippel was spirited but not angry. However, as Respondent turned to leave, he told Ms. Dippel that in the past he and the City of Lake Worth had done business with her but would no longer do so. Ms. Dippel felt that Respondent, by this statement, was trying to coerce or intimidate her into removing the Pam Wynn sign from the window of her shop. Portions of the conversation between Respondent and Ms. Dippel were overheard by Beverly Douglas, an occasional employee of Ms. Dippel, who was working in the shop that day. Ms. Douglas heard Respondent tell Ms. Dippel that he, his wife, and the City of Lake Worth had been customers of Ms. Dippel but would no longer do business with her. Ms. Douglas believed that Respondent's conduct was intimidating and characterized his statements to Ms. Dippel as "giving her a hard time." Ms. Douglas' testimony was credible and her account of Respondent's statement that he and the City of Lake Worth would discontinue doing business with Lake Avenue Flowers and Balloons corroborated that of Ms. Dippel. The City of Lake Worth does not have a contract to purchase flowers from Ms. Dippel's store, nor does it have an account there. However, the City of Lake Worth has purchased flowers from Ms. Dippel's store in the past, although not on a regular basis. An affidavit from the City Finance Director reflects that the City purchased flowers or other products or services from Ms. Dippel's store on three occasions since March of 1996. According to the City's financial records, the City made the following payments to Lake Avenue Flowers: $12.00 on or about March 26, 1996; $95.00 on or about September 22, 1997; and $100.00 on or about May 26, 1998. Respondent was not been involved in any of the aforementioned purchases made by the City from Ms. Dippel's store. However, Respondent, the city manager, and both of their secretaries were authorized to purchase flowers on behalf of the City. The street painting festival was co-chaired by Respondent's friend and supporter, Marion Webber, and funded in part through City grant money. In prior years, the festival had used Ms. Dippel's store to provide gifts to participants. After the February 21, 1999, incident, Ms. Dippel received no more business from the City of Lake Worth or the festival. Respondent admitted that Ms. Dippel's version of what happened on February 21, 1999, is accurate, with the exception of the threat, which he denies. However, the testimony of Ms. Dippel is credible and her version of events, relative to Respondent's statements, is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Tom Ramiccio, violated Section 112.313(6), Florida Statutes; imposing a civil penalty of $2,000; and issuing a public censure and reprimand. DONE AND ENTERED this 2nd day of August, 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 SUMCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2000. COPIES FURNISHED: Bonnie J. Williams, Executive Director Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire E. Gary Early, Esquire Akerman, Senterfitt & Eidson, P.A. 301 South Bronough Street, Suite 200 Post Office Box 2555 Tallahassee, Florida 32302-2555 Sheri L. Gerety, Agency 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, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue in this case is whether Respondent, R.H. Motors, d/b/a Kia of Orange Park ("Kia"), discriminated against Petitioner, Lamar B. Waters ("Waters"), on the basis of age in derogation of the Florida Civil Rights Act of 1992.
Findings Of Fact Waters is a 71-year-old Caucasian male who resides in Green Cove Springs, Florida. At all times pertinent hereto, Waters was employed by Kia at its automobile dealership in Orange Park, Florida. By all accounts, Waters was extremely well liked at the dealership. He had a jovial personality and got along well with his co-workers. He was generally seen as a nice, retired man with ample financial wherewithal to enjoy life. Waters himself says that he is financially comfortable, but does not consider himself rich. He lives in a nice house that is valued at around $900,000 (or was at the time he purchased it). He owns a nice boat that some fellow employees have used for parties and gatherings. Waters is a college football fan and enjoys spending time watching and attending games, especially for his favorite team, the Georgia Bulldogs. In 2013, Waters filed for bankruptcy, but for the purpose of working out a deal on his home mortgage, not--apparently--due to significant financial problems. Waters often said that he was financially sound and was working “only to get away from his wife,” but that may have been in jest rather than serious. Kia is a dealership which sells both new and used automobiles. It has been in existence since August 2008. It is owned by R.H. Motors, a Florida corporation. The vice president of operations for R.H. Motors is Robert Hogan. The dealership, including the car lot, offices, and service department, is located on a large tract of land in Orange Park. The new car section of the dealership is located on a large lot which includes the office building and service area. Across from the new car section there is a smaller lot which was initially used for selling used cars. There is a mobile home or modular building on the used car lot which is used as an office. Waters joined the U.S. Navy at age 17; he later entered flight school with the U.S. Army. He served time in Vietnam during the conflict with that country. Waters was honorably discharged from the service in 1975. He took a job flying airplanes for AFLAC (or its predecessor company) and later became a general manager for the company. Waters retired from AFLAC in 2004 and then went to work for a Volkswagen dealership in Orange Park, Florida. He worked as a floor salesman for the Volkswagen dealership. In November 2009, when Waters was 66 years old, he was offered a job at Kia. He accepted and started work on December 1, 2009, as a floor salesman, selling new and used cars. Waters had been hired by Joe Esposito, the general manager for Kia at that time. Waters was compensated at minimum wage plus commission on cars he sold. While he was a salesman, Waters would take off from work either Tuesday or Thursday of each week and every Sunday. In June 2010--or thereabouts--Waters was offered a different position at Kia. Waters described the position as the “wholesale manager” for the dealership. He said his duties included buying and selling cars at auctions. He also managed the used car lot, did appraisals for cars being traded in, and continued to sell cars. In April 2013, general manager Esposito placed Waters on indefinite leave due to “internal issues” at the dealership. In May 2013, Esposito asked Waters to attend a class on managing customers. The class was to be held at Kia’s primary headquarters in South Carolina. Waters and another employee traveled to South Carolina, but there was no training provided. An employee at headquarters talked with the two men briefly, but there were no classes or training. Waters had understood the reason he was sent to South Carolina was so that he could be assigned a new job as some kind of customer manager. There was obviously some disconnect between what Waters was told and what he understood to have been said. When Waters returned from South Carolina, he found that Esposito had been fired as the general manager at Kia. Waters somehow met with Robert Hogan (described by Waters as "the owner") when Hogan came to visit the dealership even though Waters was supposedly on indefinite leave at that time. When Hogan found out Waters had been placed on leave by Esposito, he immediately reinstated Waters and made sure he was paid back-pay for the time he was out of work. At that time, Hogan also asked Waters to manage the used car side of the dealership. Waters remembers that he was hired as the Used Car Manager. Hogan says he was hired as the Budget Car Manager, i.e., that Waters was only to be responsible for selling the least attractive used cars. Those cars generally came onto the lot as trade-ins by persons purchasing new vehicles. Waters said that as part of this new job, he was tasked with going to auctions for the purpose of obtaining additional used cars for the Kia dealership. Hogan said Waters was never authorized to purchase cars for the dealership, and that the dealership already had too many used cars. No additional testimony was provided to rectify this disparity. Either one of the witnesses was not telling the truth or Waters was mistaken about his duties. A brief explanation of the dealership is warranted: Kia sells both new and used cars. Used cars come from various sources, including trade-ins by customers buying new cars, purchases from rental car fleets, and purchases from auctions. The used cars were for a time sold from a lot adjacent to the main Kia lot. Later, Kia moved all used cars over to the same lot with the new cars. The used car lot was then used as a place to store new car inventory. When Waters was reinstated to his job and began working with used cars, a new general manager--Mr. Record--had been hired. Record was instrumental in the change that moved all used cars over to the new car lot. He was also very harsh and unfriendly with employees at the dealership, so Hogan eventually fired him as general manager as well. He was replaced by Jeff Norman. Norman continued the practice of keeping all the cars, new and used, on one lot--except, it appears, for the cars deemed "budget" cars. Norman also took over some of Waters’ tasks and responsibilities, e.g., Norman began doing the appraisals of used automobiles. Norman also took over the acquisition of used cars, although Waters would sometimes disagree with the choices Norman made. Norman told Waters a new policy of Kia was to get rid of the budget cars as quickly as possible rather than trying to repair them for higher re-sale. At some point in time after Waters had been reinstated to his job, Hogan began to have concerns about the number of hours the used car lot office was being manned. He expected that office to be open whenever the main lot office was open, i.e., from 9:00 a.m. until 10:00 p.m. Hogan had called and/or gone by the used car lot on numerous occasions around 5:30 p.m. or 6:00 p.m. in the evening and found it closed. Hogan raised his concerns about Waters’ work schedule with the new GM, Norman, and asked him to talk to Waters, get him back on track, and tell him what was expected of him as an employee of Kia. Norman called Waters into his office on October 16 or October 17 (the date is in dispute) to discuss the matter. Norman told Waters that things were changing at Kia. He said the dealership would be trying to sell 250 cars a month. To do that, employees were going to be expected to work long, 12-hour days, six or even seven days a week. Norman allegedly asked Waters how old he was, and then said Waters was about the same age as Norman’s father. Norman allegedly told Waters that the dealership did not want to put him under that kind of stress. Waters told Norman he would not like the proposed new work schedule and hours. Norman allegedly told Waters that he (Norman) was worried that a man Waters’ age could not stand the stress of working those hours.1/ Waters took Norman’s words to mean, in essence, that Waters was being terminated from employment. He replied to Norman only, "I appreciate it," and walked toward the door. As he was exiting, Norman said that he would check with the sister Kia dealership in the Southside area of Jacksonville to see if they had any sales positions open. Waters apparently did not accept that offer. After the meeting with Norman, Waters went to his desk and gathered his personal belongings. He went back into the dealership and said goodbye to Hutchinson, the young office manager who had been friendly to Waters during his tenure at Kia. Waters hugged Hutchinson, said "I’m out of here," and indicated that he did not want to work on weekends. He then left the premises.2/ On the 17th day of October, Hutchinson was instructed to fill out a Separation Notice to reflect Waters’ cessation of employment at Kia. The reason given on the form for Waters’ leaving was "Voluntary [sic] Quit." Waters’ term of employment was listed as December 1, 2009 through October 17, 2013. Waters’ work schedule was listed as 9:00 a.m. until 10:00 p.m., seven days a week. Hutchinson said that is simply a statement of when the store is open; each person works the hours necessary to get their job done. In the description of Waters in the Separation Notice, Hutchinson wrote, "Great company guy. None better." There is not dispute that Waters was a well-liked person at the dealership. Waters did not see the Separation Notice until it was sent to his attorney in preparation for final hearing. Waters disagrees with the date of the notice, the work hours listed, and that he voluntarily quit his job. On October 1, 2013, just two weeks before leaving Kia, Waters had been given a raise from $1,500.00 per month, plus 5% of profits generated by the used car department, to $4,000.00 per month plus 5% of the profits. Waters did not contact Hogan to inquire as to whether something could be worked out concerning his continued employment. Hogan had been exceptionally nice to Waters in the past, but Waters did not pursue relief with him. Hogan remembers trying to contact Waters once via telephone but never talked to him about the matter. As far as Hogan is concerned, Waters voluntarily terminated his employment with Kia because he did not want to work the hours needed. Hogan had hired Waters at age 66 and did not have any objection to Waters working for as long as he felt healthy enough to do so. After he left his employment with Kia, Waters has sought but been unable to locate another management job. He has no interest in going back into a sales position. No testimony or evidence was presented at final hearing as to whether Waters’ position with Kia was filled or, if so, whether a younger person was hired to replace him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, upholding its determination that no cause exists for a finding of discrimination against Petitioner, Lamar B. Waters, by Respondent, R.H. Motors, d/b/a Kia of Orange Park. DONE AND ENTERED this 30th day of October, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 30th day of October, 2014.
Findings Of Fact Taken together, the evidence is clear that, if the Respondent did what he is accused of doing, his conduct: (1) would have been inconsistent with the standards of public conscience and good morals; (2) would have been sufficiently notorious to bring the Respondent and the education profession into public disgrace or disrespect; (3) would impair the Respondent's service in the community; and (4) would have been so serious as to impair the Respondent's effectiveness in the school system. But it is found that the School Board's evidence did not prove the allegations. The ultimate finding of fact is based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officer. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew the Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn whether the Respondent engaged in, or had a reputation for engaging in, the kind of conduct he was accused of doing. In this case, although the testimony of the arresting police officer is not accepted, it is not found that his testimony was pure fabrication. Rather, it is found that, due to his mindset and expectations, the arresting police officer misinterpreted much of the conduct he observed involving the Respondent on January 24, 1995. On that day, the police officer was patrolling Lake Seminole Park in Pinellas County, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual), activities for which the park had become notorious to the police department and to many others who frequented the park. The police officer on duty at the park that day expected users of the park to know its reputation, and he expected to find homosexual men using the park for these notorious purposes. As a result, knowing nothing about the Respondent, he misinterpretated innocent or ambiguous behavior of the Respondent as evidence of criminal conduct. He also attributed little or no importance to behavior of the Respondent that was evidence of his innocence of criminal charges. In addition, as a result of the manner in which he conducted his operation, he initiated the situations from which the misinterpreted behaviors flowed. After the officer announced that he was placing the Respondent under arrest, the Respondent may have made statements in an effort to avoid any further adverse repercussions; the officer interpreted them as admissions of guilt. Finally, the officer may have exaggerated or embellished some of his testimony to support the validity of the arrest he ultimately made. When the officer first saw the Respondent, the Respondent was driving his car on roads in the park in excess of the speed limit. The officer decided to follow in his vehicle because the Respondent was speeding but overlooked the possibility that driving at a high speed generally was inconsistent with "cruising" the park, a more normal behavior for one looking for opportunities to engage in the criminal conduct the officer was investigating. When the Respondent pulled into the parking lot of a rest room pavillion in the park, the officer continued to suspect that the Respondent's purpose was criminal. The officer attributed no significance to the Respondent's turning into the first available driveway into the parking lot and driving the wrong way on a one-way drive to enter the parking area. What the officer did not know was that the Respondent is on diuretic medication for high blood pressure and that, partly as a result, he has to urinate frequently and has difficulty controlling his need to urinate. As he was driving down the street, the Respondent began to feel the urge to urinate and decided to enter the park as a likely place to find a convenient rest room. The officer followed the Respondent into the parking lot and parked in a space to the left of the Respondent's space, between the Respondent's space and the rest room pavillion. When the Respondent did not immediately get out of his car, the officer suspected that the Respondent was waiting for him. What he did not know was that the Respondent was driving shoeless and was putting his shoes on. When the Respondent got out of his car, he had an unlit cigarette in his hand. He did not think he had any matches on him and, as he was walking past the officer's parked car, he tapped the cigarette he was holding with his other hand in a gesture to ask the officer for a light and approached the driver side of the officer's car. When the Respondent got to the driver side of the car, the officer rolled down the window, and the Respondent asked for a light. He could see through the officer's open driver side window that the officer did not have matches or a portable lighter but had pushed in his car cigarette lighter. As a result, the Respondent had to wait for the lighter to heat up. No words were spoken while the Respondent waited. However, by the time the Respondent got his light and was ready to leave, he felt the need to touch and hold his crotch area to delay urination. (The officer inaccurately called this "massaging" the groin area.) The Respondent apparently also made some noises as a result of his distress, which the officer interpreted as "low moaning." The officer saw a "bulge" in the Respondent's pants in the area of the crotch and misinterpreted it as being an erection. As soon as the Respondent got his light, he said thanks and walked directly to the rest room pavillion. The officer testified that, when the Respondent got far enough away so that the officer could see the Respondent's face and head, the Respondent nodded to him. If so, it may have been in thanks or acknowledgement for lighting the cigarette. But the officer, still interpreting the Respondent's behavior as the prelude to criminal activity, misinterpretated the nod as an invitation to follow the Respondent into the rest room. Unbeknownst to the Respondent, the officer followed him to the men's room. The officer acknowledges that, as he approached the men's room, he could hear the Respondent urinating. As the officer entered the men's room (unobserved by the Respondent), he saw the Respondent leaving the urinal next to the toilet stall at the far end of the rest room and entering the toilet stall. There was no one else in the men's room. The Respondent intended to use the toilet stall, but it was soiled so he flushed it and, with his pants still down and his penis exposed, switched back to one of the urinals, where he finished urinating. The officer again failed to be impressed with the possible consistency of the Respondent's behavior with that of a man who needed to find a toilet and urinate in a hurry. Instead, the officer focused on the Respondent's moving from the toilet stall to the urinal with his penis exposed and misinterpreted it as being part of a course of criminal conduct. While the Respondent was in the toilet stall, a car could be heard driving through the parking lot. As the Respondent left the toilet stall and switched to the urinal, the officer asked him if he knew where the car had gone, and the Respondent answered that he thought it left. The officer interpreted the Respondent's answer as incriminating; meanwhile, the Respondent was beginning to get suspicious about the officer's intentions. Nothing else happened for the officer to misinterpret while the Respondent finished urinating. No words were exchanged. Then, while standing behind and to the right of the Respondent as he finished urinating, the officer initiated conversation by asking the Respondent, "well, what do you want to do?" (The Respondent also recalls the officer commenting that the Respondent was "hard" earlier but couldn't "get it up" any more; the officer does not recall those comments.) By this time suspicious of the officer's intentions, the Respondent half turned in the direction of the officer while continuing to shake his penis to stop it from dripping urine, and testily asked back, "what do you want to do?" (The Respondent may also have been exaggerating the motion of shaking urine off his penis as a way of establishing the intruder's intentions, as in "is this what you want?") The officer did not see the Respondent's penis long enough to be able to say whether the Respondent had been circumcised; he only could say that it was not erect and generally describe its size and color. Yet, misinterpreted and erroneously described the gesture as "masturbating." Intending to shake up the intruder, the Respondent also asked him, "do you live around here?" In the officer's exaggerated and embellished retelling to buttress the validity of the arrest, this question became a conversation in which the officer expressed discomfort "doing it" in the men's room and the two discussed where they could go to have sex in private. The very next thing that happened was the officer's announcement that he was a police officer and that the Respondent was under arrest. The Respondent asked incredulously, "arrested for what?" Then, afraid of the obvious repercussions of an arrest for lewd conduct on his teaching position and certification, the Respondent said things for the purpose of trying to avoid those repercussions that served instead to confirm the officer's view that the Respondent was guilty. At one point, the Respondent told the officer that, if the officer let him go, the Respondent would promise never to return to Lake Seminole Park. The officer took the promise as an admission that the Respondent frequented the park when in fact the Respondent was telling the truth when he earlier denied ever having been to the park before. When the Respondent told the officer that he was coming from work, the officer asked where he worked, and the Respondent identified his job at ETC Molex but at first omitted to say that he also worked at Osceola Middle School, which he just had left. The officer never had heard of ETC Molex and somehow understood the Respondent to be saying that he worked at Bay Pines Hospital. After the Respondent retrieved identification from the glove compartment of his car, he lit another cigarette with matches he found in the glove compartment. The officer thought the Respondent got the cigarette (along with his driver's license) from his coat pocket. This misunderstanding served to confirm the officer's misconception that the Respondent's initial request for a light for his cigarette was just an excuse to make contact with the officer for purposes of planned criminal activity. The officer also thought the Respondent was lying when the Respondent told the officer earlier that his identification was in his car. When the officer saw on the Respondent's driver license that he lived in south St. Petersburg, he asked the Respondent why he drove to Lake Seminole Park if he was on his way home from "work" (i.e., from Bay Pines Hospital, which also is south of Lake Seminole Park). At that point, the Respondent corrected the officer's misunderstanding as to his place of employment and told the officer that he also was a PE teacher at Osceola Middle School. He also corrected the officer's misunderstanding as to his destination--he told the officer that he was going to a meeting at the Pinellas County Classroom Teachers Association, which is north of Lake Seminole Park, not directly home. In the officer's mind, the Respondent had been dissembling, and he interpreted the dissembling as evidence of guilt. After the Respondent's arrest, and during the pendency of criminal proceedings, the School Board did not interview the Respondent in deference to his constitutional right not to say anything that might incriminate him; nonetheless, the School Board went forward with its proceeding to dismiss the Respondent. After the criminal proceedings were dismissed, and this case was scheduled for final hearing, the School Board did not seek to interview the Respondent due to the Respondent's representation by counsel; nonetheless, the School Board continue to prosecute the dismissal proceeding. At no time before the taking of the Respondent's deposition in this proceeding did the School Board ask to interview the Respondent to hear his side of the story of what happened on January 24, 1995; on the other hand, there is no evidence that either the Respondent or his attorney requested such an interview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges against the Respondent and reinstating him with full back pay. RECOMMENDED this 30th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0898 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected as not supported by any evidence. Also, the position taken by the School Board has been that the Respondent was not on continuing contract. See also proposed finding 33. 3.-4. Accepted but subordinate and unnecessary. 5.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Accepted but unnecessary without proof that the Respondent knew he was passing rest rooms on his way to the rest room he used. 8.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the gesture was to roll down the window. Accepted and incorporated. The officer's misinterpretation of what he saw and heard is rejected as not proven. Accepted and incorporated. Rejected as not proven that the Respondent gestured for the officer to follow. 16.-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19.-20. Rejected as not proven that the Respondent urinated into the toilet. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent turned towards the officer until after the officer started talking to him. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Rejected as not proven that the Respondent was masturbating. Otherwise, accepted and incorporated. Rejected as not proven. 25.-26. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rejected as not proven that the wallet was in his coat pocket the whole time. Accepted; in part incorporated and in part subordinate to facts contrary to those found. Rejected as not proven that the matches were in his coat pocket the whole time. First sentence, rejected as not proven that he said "to read." (That was either a misunderstanding or part of the officer's embellishment of his story.) Otherwise, accepted and incorporated. 32.-34. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. (The Respondent's proposed findings of fact appear to be in the "Argument" section of the Respondent's Proposed Recommended Order. For purposes of these rulings, the unnumbered paragraphs of the "Argument" section are assigned consecutive numbers.) Accepted and incorporated. The Respondent initiated conversation at the officer's car outside the rest room pavillion; the officer initiated conversation inside the rest room. Also, there were conflicts in the testimony at earlier points in time, too. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. The rest is rejected as argument, as subordinate and as unnecessary. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640 Howard Hinesley Superintendent of Schools School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649-2942 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
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
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent Kenneth Burns (Respondent) is a certified correctional officer in the State of Florida. On or about November 26, 2000, Highway Patrol Trooper Brannon Snead saw a Camaro, with its emergency flashers on, parked on Highway 90 in the vicinity of State Road 10. Trooper Snead stopped to see if he could help and observed two white males hitting the passenger of a black Ford Mustang that was also parked alongside the road. Trooper Snead intervened and eventually arrested Respondent and charged him with criminal mischief, burglary of an automobile, and battery. Trooper Snead identified his arrest report which was received in evidence as Petitioner's Exhibit A. Trooper Snead observed Respondent strike the driver of the Mustang twice. Trooper Snead observed that Respondent was under the influence of intoxicants and was impaired. After arresting Respondent, Trooper Snead transported him to the Leon County Jail. Trooper Snead observed Respondent's demeanor. Respondent was argumentative, combative, and uncooperative. Trooper Snead had to warn Respondent several times about his behavior. Respondent spit all over the back of Trooper Snead's patrol car. Detective Patricia Iadanza testified that she was delivering two criminals to the jail on November 26, 2000. She observed Trooper Snead with two persons who were in handcuffs in the booking area. One was quiet. The other person, who she later learned was Respondent, was loud and obnoxious. She found it necessary to tell Respondent to sit down and be quiet. Respondent was loud and rowdy and indicated he was a certified officer. Detective Iadanza reported she warned Respondent that his conduct would get him in serious trouble in the Leon County Sheriff's Department and he needed to straighten out. He did not stop his loud and rowdy behavior. Subsequently, she wrote a report regarding Respondent's behavior after he made a complaint about Trooper Snead. According to Petitioner's late-filed exhibit, Respondent entered a plea of nolo contendere to a charge of trespass of a vehicle, battery, and criminal mischief. He was placed on probation for one year.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be suspended for 24 months. DONE AND ENTERED this 20th day of February, 2002, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2002. COPIES FURNISHED: Kenneth Burns 1727 Dewey McGuire Road Perry, Florida 32348-8087 Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William G. Bankhead, Secretary Florida Department of Law Enforcement Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Florida Department of Law Enforcement Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The information-gathering hearing was convened for the purpose of determining the impact of Lake County’s Order denying a rezoning application (“Rezoning”) for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23 (“PUD”), whether the denial of the rezoning application was unreasonable or unfairly burdened the real property subject to Petitioner’s rezoning application, and whether some modification of Petitioner’s proposed use of the property or adjustment to the denial of the rezoning application could be reached.
Conclusions For Petitioner: Cecelia Bonifay, Esquire Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 For Respondent: David Langley, Esquire Lake County Attorney’s Office 315 West Main Street Tavares, Florida 32778 A number of non-party participants appeared at the Zoom conference and were permitted to offer documents and testimony pursuant to limitations established in the November 4, 2021, Notice of Hearing Before a Special Magistrate.
Recommendation Based upon the foregoing Stipulated Findings, the Findings Adduced at Hearing, and the Public Comment, the undersigned concludes that the proposed Rezoning satisfies the requirements of the Lake County Comprehensive Plan and Land Development Code, that there is no reason related to transportation safety to deny the Rezoning, and that the denial of the Rezoning, under the circumstances presented here, is unreasonable or unfairly burdens use of the Property. Therefore, it is recommended that the Lake County Board of County Commissioners approve the application for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23, subject to the conditions previously agreed upon by Lake Nellie, and the following: Stormwater facilities shall be vegetated with native species where possible. Sidewalks shall be constructed within the Project and along the Project’s frontage on Lakeshore Drive and Royal Vista Avenue. In addition to the left turn lane for southbound traffic, Lake Nellie and Lake County shall examine the feasibility of a right turn deceleration lane into the Project for northbound traffic on Lakeshore Drive. If determined to advance safety on Lakeshore Drive, the right turn lane shall meet Florida Department of Transportation specifications for design and length for a 40 MPH road. Land necessary for the construction of a right turn deceleration lane shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. If Lake County determines in the future that a roundabout at the entrance to the Project would facilitate traffic flow and enhance safety, Lake Nellie, or its successor homeowners’ association or maintenance entity, shall donate land within its ownership and control to Lake County for use as right- of-way for the roundabout. That donation shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. DONE AND ENTERED this 18th day of January, 2022, in Tallahassee, Leon County, Florida. S E. GARY EARLY Special Magistrate 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2022. COPIES FURNISHED: Melanie N. Marsh, Esquire Lake County Attorney's Office Post Office Box 7800 Tavares, Florida 32778 Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 David Langley, Esquire Lake County Attorney Office 315 West Main Street Tavares, Florida 32778 Jennifer Barker, Interim County Manager Lake County, Florida 315 West Main Street Tavares, Florida 32778 Cecelia Bonifay, Esquire Akerman Senterfitt 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 Nicole Blumenauer, Esquire Lake County Attorney's Office 315 West Main Street Tavares, Florida 32778 Sean M. Parks, Chairman Board of County Commissioners Lake County, Florida 315 West Main Street Tavares, Florida 32778
The Issue The issues are whether Respondent, Country Club Village MHP, Inc. (CCV Park), discriminated against Petitioner, Miguel A. Cotrich (Mr. Cotrich), based on his national origin in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Mr. Cotrich is entitled.
Findings Of Fact Mr. Cotrich is a Hispanic male,8/ who resided in CCV Park for approximately 29 months. Mr. Cotrich did not own the mobile home or the lot (number 56) on which it was placed; thus, he owed monthly rent to CCV Park and to the owner of the mobile home. Mr. Cotrich moved out of CCV Park in late May or early June 2011.9/ Rocio Harris, an Hispanic woman, who spoke Spanish, was CCV Park's manager during the majority of the time that Mr. Cotrich resided in CCV Park. Ms. Harris was well thought of and did her best as manager, but she did not collect monthly rent payments or enforce park rules uniformly. On June 5, 2009, Mr. Cotrich and Anna Maria Cotrich, his wife, executed a $10,000.00 Promissory Note (Note) to buy the mobile home located at lot 56 in CCV Park. The Note was between the Cotriches and Maria Gonzalez. The Note called for a $1,400.00 down payment and monthly installments of $500.00 beginning on July 1, 2009. Mr. Cotrich created a ledger to record the monthly Note payments he made on the mobile home (Petitioner's Exhibit 2). This ledger reflects he paid the $1,400.00 down payment and a $500.00 payment on January 3, 2009, five months before the Note was executed. Likewise, it also reflects five $500.00 payments for the trailer before the Note was executed. Simply by adding up the figures on Mr. Cotrich's ledger, the total comes to $10,600.00. This is $600.00 in over-payments. Mr. Cotrich did not disclose this overpayment during his testimony. Mr. Cotrich did not possess the title to the mobile home, nor did he produce any credible evidence that he was entitled to it. Mr. Cotrich's testimony contradicts the executed Note and his own written record of the amounts of payments. Neither Mr. Cotrich's testimony nor his ledger is credible. Mr. Cotrich allegedly paid Ms. Harris the monthly Note payments because he did not trust Ms. Gonzalez. Mr. Cotrich did not receive a receipt from Ms. Harris or Ms. Gonzalez for any payments made on the Note. His claim that he was working away from the mobile home and could not get to the office during its office hours to obtain such a receipt is not credible. Further, Mr. Cotrich's testimony that he paid someone other than the Note lender without obtaining a receipt from that recipient is not credible. In January 2011, Debra Hunter became CCV Park's manager following Ms. Harris' death. Ms. Hunter started collecting the rent payments on time and enforcing CCV Park rules. Her actions caused tension among those who were delinquent with their rent and/or not abiding by other park rules. Mr. Cotrich was always in arrears for his lot rent payment while Ms. Hunter was the manager. At some point Mr. Cotrich had one or two dogs (at least one of which was a pit bull dog) in his rented mobile home. CCV Park rules allow for one small (under 20 pounds) dog. Apparently Ms. Harris knew of the dogs, but did not charge Mr. Cotrich for having them. However, beginning in January 2011, when Ms. Hunter became the manager and was aware of the dogs, Mr. Cotrich was charged $16.00 monthly for having the two dogs ($8.00 per pet, per month). Charles Stevens, one of CCV Park's owners, credibly testified that he had a conversation with Mr. Cotrich about the pit bull dog(s). In that conversation, Mr. Stevens advised Mr. Cotrich that mean dogs (including pit bull dogs) were not (and are not) allowed in CCV Park. This was because there were children present, and there were insurance concerns. Mr. Stevens felt he was unable to make Mr. Cotrich understand the need to remove the dog(s). At some point, Mr. Cotrich approached Ms. Hunter and told her he wanted to sell or rent his trailer to his brother, who is Puerto Rican. Ms. Hunter objected to that proposal on the grounds that Mr. Cotrich owed past-due rent. Mr. Cotrich became loud and apparently yelled that Ms. Hunter did not want Puerto Ricans in CCV Park. Ms. Hunter's position to deny Mr. Cotrich's proposed tenant was based on the outstanding balance that Mr. Cotrich had with CCV Park. Following this verbal confrontation, Mr. Cotrich claimed he felt harassed by CCV Park management. Although Mr. Cotrich produced his medical records for hospitalization dates of January 8, January 10, and March 30, 2011,10/ there is nothing therein to substantiate that CCV Park or its management caused his physical circumstances. Mr. Cotrich, upon being discharged from the last hospitalization, went to a rehabilitation/nursing home facility. Mr. Cotrich testified he was not evicted from CCV Park, but he voluntarily left CCV Park in May 2011, because he felt his health was in jeopardy. Mrs. Cotrich completed her move out of CCV Park sometime in June 2011. CCV Park issued monthly receipts for payments it received. For the 29-month period that Mr. Cotrich claimed to reside at CCV Park, only 13 dated receipts were produced. (There were a total of 20 pages of receipts, but some were duplicative.) The receipts offered and accepted in evidence began in July 2009. All but one receipt had a monetary figure in the section "REMINDER OF OUTSTANDING CHARGES" at the bottom of each receipt. Ms. Hunter and Mr. Stevens both testified that CCV Park is 70 percent Hispanic. Mr. Stevens knows the rental market in Kissimmee, and he understands the Hispanic population has a very real presence in Kissimmee. CCV Park is a multi-cultural mobile home park. Since becoming the manager (while Mr. Cotrich lived there and after), Ms. Hunter has increased rental collections, enforced the park rules, and made CCV Park a nice place to live. CCV Park has instituted several after-school programs and activities that have apparently helped raise the children's grade-point averages in school. Mr. Cotrich presented Jess Jusino, his son-in-law, and Ernest Cotrich, his son and care-giver, as witnesses. The undersigned evaluated the testimony presented by these two witnesses and found it to be unpersuasive. Mr. Cotrich did not substantiate his claim of discrimination based on his national origin. The testimony and evidence demonstrate that Mr. Cotrich left CCV Park on his own volition and that he failed to pay rent in a timely manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Miguel A. Cotrich. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of August, 2012.
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.
