The Issue The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol. On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old. Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife. The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them. In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained. Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms. When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door. At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence. The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated. As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were. An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian. The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them. Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m. Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent. Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon. At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon. At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun. He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome. When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now." As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping. Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch. Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited. In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well. After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise. Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state. The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property. Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer. As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy. The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character. On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court. In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years. RECOMMENDED this 19th day of July, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance. 9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance. 21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance. Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact. II: adopted in substance except "near-perfect" record rejected as unsupported by the greater weight of the evidence. II, a-b: adopted or adopted in substance. II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance. II, d: adopted. II, e: rejected as subordinate. II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house. II, l: adopted in substance except that complaint filed against Mrs. Lanning is rejected as irrelevant. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Douglas E. Whitney Maitland Springs Office Park 377 Maitland Avenue, Suite 101 Altamonte Springs, FL 32701 Jeffrey Long Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the administrative complaint, Respondent has been certified by the Commission as a law enforcement officer, certificate No. 02- 34512. In April, 1987, Respondent was employed by the Florida Highway Patrol (FHP) in Dade County, Florida. On the morning of April 9, 1987, at approximately 7:00 a.m., while dressed in his FHP uniform, Respondent went to the home of his girl friend, Connie Hawkins. Unable to waken Ms. Hawkins by knocking at the door, Respondent went around to her bedroom, began to bang on the glass, and attempted to pry open the window. As a result, the window broke and Ms. Hawkins was awakened by the noise. Respondent then demanded that Ms. Hawkins open the door since he had cut his left arm on the broken window. When Ms. Hawkins opened the door, Respondent began to strike her about the face and arm. Apparently, Respondent was angry that Ms. Hawkins had not opened the door earlier and felt she had caused the injury to his arm. This injury, a two inch cut on the left arm, was bleeding rather badly. Respondent went to Ms. Hawkins' bathroom and wrapped a hand towel around the wound in order to apply pressure and stop the bleeding. Subsequently, Respondent left the Hawkins' home in his FHP vehicle. After she was sure Respondent was gone, Ms. Hawkins telephoned the Metro-Dade police to report the incident. She did not want to have the Respondent criminally prosecuted, but she did want to take measures to assure he would not attack her again. After giving a statement to the police, Ms. Hawkins went to an area hospital for examination and treatment of her swollen face and bruised arm. She was required to wear a sling on the injured arm for a couple of days. The Metro-Dade police notified the FHP that one of its employees, Respondent, had been named in connection with a domestic disturbance. The report of the incident was given to Lt. Miller, the FHP supervisor on duty the morning of April 9, 1987. Coincidentally, that same morning at approximately 7:30 am., Lt. Miller had observed a cut on Respondent's left arm and had ordered him to a hospital for stitches. According to the story Respondent gave Lt. Miller, the injury had been caused by the FHP car door when Respondent was entering it after a routine highway stop. A sharp piece of the window framing had allegedly snagged Respondent's arm causing the cut. According to the Respondent, the piece of metal framing may have fallen off the car since the area was later found to be smooth.- Following treatment for the cut, Respondent signed a Notice of Injury form which is required by the Division of Workers' Compensation for all work- related injuries. This form alleged the injury had been sustained as described in paragraph 8. Subsequently, an investigation conducted by the FHP raised questions regarding the incident with Ms. Hawkins and the "work-related" cut on Respondent's arm. Lt. Baker attempted to interview Respondent regarding this investigation. Respondent declined to be interviewed and resigned from the FHP. Later, Respondent obtained a job as a security officer with the Dade County School District. Prior to his resignation from the FHP, Respondent did not claim he had cut or injured both arms on the morning of April 9, 1987. Lt. Miller did not observe a cut on Respondent's right arm on April 9, 1987. Neither Lt. Miller nor Trooper Allen, a trained traffic homicide investigator, could discover any trace evidence on Respondent's FHP vehicle to substantiate Respondent's claim regarding the cut. There were no breaks in the metal or paint along Respondent's door in the area he identified as the point of injury. There were no rough or jagged edges. The Notice of Injury signed by Respondent contained information which was false or misleading.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice standards and Training Commission enter a final order revoking the certification for a law enforcement officer held by Respondent. DONE and RECOMMENDED this 19th day of January, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of January, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1-38 are accepted. Paragraph 39 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Paragraph 40 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. Respondent's testimony and that of Mr. Black relating to the alleged wound to the right arm was not credible. Paragraph 41 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. Paragraph 42 is rejected as irrelevant, immaterial, or unnecessary to the findings made herein. See comment p. 3 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-5 are accepted. With regard to paragraph 6, to the extent that it relates Respondent's testimony it is correct, however, the fact it not. That is, it is found that Respondent injured his left arm at the Hawkins' home; consequently, Paragraph 6 is rejected as contrary to the weight of the credible evidence. Respondent's account was not credible. Paragraph 7 is accepted to the extent that it relates the story given by Respondent; such story being deemed incredible and therefore, rejected as contrary to the weight of credible evidence. Paragraph 8 is accepted to the extent that it relates the testimony of the troopers; however, the conclusion reached is speculative and unsupported by the record in this cause. Paragraph 9 is rejected as contrary to the weight of credible evidence. Paragraph 10 is accepted; however the facts related in that form were false or misleading. Paragraph 11 is rejected as argument, or unsupported by the credible evidence in this cause. Paragraph 12 is rejected as argument, or unsupported by the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Denis Dean, Esquire Dean & Hartman, P.A. 10680 N. W. 25 Street Suite 200 Miami, Florida 33172 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times relevant to this matter, Joe Pete Cannon was a member of the Town Council of Branford, Suwannee County, Florida, having served in that capacity for approximately twenty years. For approximately seventeen of the twenty years he was president of the five-member council. As president, he chaired the council meetings and assisted the mayor in town administration. Employees of the town were hired and fired by vote of the council; neither the mayor nor council president had that authority alone. Branford, as its letterhead states, is situated "on the banks of the Suwannee River". City limit to city limit, it runs about one-half to three- quarter mile long and has a population of approximately 700. Branford's chief of police, and currently only law enforcement officer is Fred Brittain. Chief Brittain has served in that capacity since 1989; he also served from 1975-1983. Between 1983 and 1989, he served 2 1/2 terms on the town council and resigned from the council in 1989. At various times in the past, Branford has employed three part-time police: Mr. Swafford, Mr. Chancey and, most recently, Roy Harper. Roy Harper was hired by the Town Council in September 1992, at the recommendation and request of Chief Brittain. He had approximately ten years' experience in law enforcement and was working on his two-year degree in criminal justice at the community college. When Harper was hired, Chief Brittain instructed him to conduct general law enforcement patrol work: "Preserve the peace; protect the public; enforce laws." The residential areas were experiencing vandalism, so Harper was told to check suspicious persons. Some burglaries and speeders were also described as problems. No quotas were established for traffic tickets, and no one suggested that traffic tickets should be a good source of revenue for the town. As to speeders, Chief Brittain explained his policy to Harper: up to ten miles per hour (mph) over the speed limit, stop and warn, or don't warn, as long as the person is not driving erratically; if the person is driving erratically or over ten mph over the limit, write a ticket, but use your discretion, as there can always be a good story. No policy was given for voiding tickets and Harper was allowed considerable discretion. Generally, both Chief Brittain and Harper had a policy of voiding tickets they wrote to teens if the parent said they would handle the discipline. As Harper described, he was not trying to cost the parent money, but just wanted to control the problem. After Harper was hired, the number of tickets written in Branford increased. This was as expected, because the more police you have, the more tickets get written. Moreover, both Harper and Chief Brittain were "radar certified" and running radar was a more efficient way to apprehend speeders. In October, November and December 1992, the number of citations were 80, 91 and 100, respectively, up from a high of 71 and an average of 46.5 over the prior twelve months period. Harper wrote tickets, but he also gave a lot of warnings. Around the end of November 1992, Harper had been "running radar" for a week from the ballpark on Governor Street. He had been giving warnings and telling folks that after the week was up he was going to write tickets. He stopped a lot of people and gave this warning. At approximately 7:34 p.m. on November 21, 1992, Howard stopped a young lady heading eastbound on Governor. She was speeding at 42 mph in a 25 mph zone. She said she was a newcomer to the area. When Harper asked where she went to school, she said "Branford". He told her she should be aware of the speed limit, and he issued the citation. Harper talked to Chief Brittain at town hall that evening and asked whether he knew Ms. Kelley, and said he had written her a ticket. Chief Brittain said the Kelleys had lived there all their lives. Jennifer Kelley attends Branford High School. She is a straight-A student, president of the student body, and "Miss BHS". Her father is Ernest Kelley, a life-time resident of Branford. He owns Kelley's Auto Supply, the NAPA store, which has been in the family since 1961, and he runs an investment business. Mr. Kelley found out about the ticket on Sunday night, and the next morning he went to see his insurance man, Tommy Lewis. He was concerned that this was a first offense, that Jennifer was known as a good kid and that maybe the ticket could be mitigated. Kelley insured the whole family on one policy and Kelley's own driving record was not so good. Lewis told him that many times Judge Kennon would waive the points and let them pay a fine. Lewis also told him that 15 mph over the limit was a "major violation", by insurance standards, and that the three options were: a) "local discretion"; b) "the judge's discretion", and c) the guaranteed option of driving school, in lieu of points. Kelley also said he could talk to Cotton State (the insurance company) and tell them this is a good kid. Tommy Lewis, Ernest Kelley and Joe Pete Cannon are golfing buddies; they are three of the twelve or fifteen Branford citizens who are members of the Chiefland County Club. After talking with Tommy Lewis, Ernest Kelley called Joe Pete Cannon and asked him to drop by his office. Cannon did, and Kelley told him about Jennifer's ticket and what Lewis had told him about the options. The driving school option, a sure thing, was not the first choice because of the child's age and the three-time limit over a lifetime. Kelley asked Cannon if he should go talk to "Fred" (Chief Brittain). Cannon said that Fred was over at town hall and offered to go see what local discretion meant. Cannon went over to see Fred, as promised. He asked the chief whether anyone had ever issued a ticket or warning to Jennifer before and he asked whether the ticket could be reduced to a warning in this case. Joe Pete Cannon, according to Chief Brittain, did not use the terms "void the ticket"; Brittain used the terms, and responded that he could not "void" another officer's ticket. Chief Brittain checked to see if the ticket had gone into the court system yet. It had not, and the chief changed the 42 mph to 40 mph and said that was all he could do. Cannon went back to Kelley and told him what happened. Kelley went to the judge, and the ticket was resolved with a $90 fine and waiver of points. If Cannon had not been a political figure, Chief Brittain would not have seen any problem with the approach. The chief had dealt with parents and violators before and he considered voiding a ticket he wrote as part of the discretion an officer should use. The questions, to Chief Brittain's mind, were not improper, except that Cannon was acting on behalf of a friend, instead of himself or a family member. At no time did Chief Brittain suggest to Cannon that Kelley should talk directly to Roy Harper about the ticket. Kelley had a chance to talk with Harper a few days later when Kelley was at the auto store after closing time. Harper stopped at the store for a routine check. The men introduced themselves and had a cordial chat. Kelley said that he had no doubt that his daughter was speeding but he wanted to make sure she was not causing trouble. Kelley told Harper he had gone to the judge and the points would be withheld when the fine was paid. Harper said that was the thing to do. Kelley was not angry with Harper. Over the next month things got stirred up in Branford about ticket writing and the unwritten policies about who got warnings and who didn't. Mike Suggs has lived in the Branford area all his life. On Christmas day 1992, his 16 year old son, Wade, was ticketed by Roy Harper as the boy was heading home out of town. The ticket reflects he was going 48 mph in a 30 mph zone. Mike Suggs talked to Cannon a few days later and said he didn't think it was fair, as he heard others had been stopped, but didn't get a ticket. He did not ask Cannon to throw it out and he did not go to Chief Brittain or Harper to complain. Gary Howard, a member of the town council complained to Chief Brittain until he heard that the youth was doing 18 mph over the speed limit, not 5 mph as his mother had said. Christine Langford, now married to Gary Howard, was clocked on Roy Harper's radar doing 54 mph in a 30 mph zone, going north on state road 129. She got a ticket and her husband felt she deserved it. Shane Harris was stopped and ticketed by Roy Harper on January 2, 1993, for doing 48 mph in a 30 mph zone. The ticket was voided when Shane's dad came and talked to Harper. The boy was in the military service; his dad is a law enforcement officer in Lafayette County. Bobby Avery was stopped by Roy Harper in December 1992 for speeding on the Lake City highway in his pick-up truck. Avery had been drinking and was a little belligerent. When he identified himself as an inspection officer from DOT, Harper called Chief Brittain to come identify him. Chief Brittain went out to the scene and did verify who Avery was, but did not mention that he, himself, had stopped Avery before. Avery's attitude was sarcastic and there was alcohol on his breath, but he was not drunk or impaired. Roy Harper let him go with a warning, primarily because he did not want the bad attitude to cause him to write the ticket. Harper found out later that Avery had been stopped before by Chief Brittain. Ms. Mullins was another speeder who just got a warning from Roy Harper. Her speed was just over the limit and she told him she "never speeds in Branford", but was on her way to the doctor's office. He told her to go and call him from the doctor's office and he would check with Fred Brittain, but if she did not call, he would send her the ticket in the mail. She called, and did not get the ticket, because Chief Brittain confirmed that he never had a problem with her. The Holzclaw boy was another case involving Roy Harper. There had been some vandalism or other criminal activity in one of the neighborhoods. Harper saw the boy in a vehicle around 10:00 or 10:30 p.m. He watched him and followed him out of town and across the Suwannee River bridge where he stopped him. After questioning the boy about some guns and equipment he had in the truck for hog-hunting, Harper let him go. The boy's father felt he had been harassed and complained to Joe Pete Cannon and to the sheriff. Nell's Restaurant in downtown Branford is the hub of social intercourse in the community. Folks gather there at lunch and on Saturdays and share news and views. At Nell's, the Branford police department was a hot issue. Richard Marquette, fourteen years in Branford, manager of a gas company and former vice-president of the Chamber of Commerce, heard that Chief Brittain was told he could have as many deputies as he wanted, as long as they wrote enough tickets to pay their salaries. He didn't know whether this was true and he went to see Joe Pete Cannon about it. He heard that Harper was hiding with his radar up at the school by the football field. He heard customers say they would rather go to High Springs because Branford was a speed trap. Tommy Lewis, in his usual course of business, gets calls from people wanting to know what a ticket will do to their insurance. He got a lot more calls when Roy Harper was a Branford police officer. He, and others, including M.O. Clark, another insurance agent in Branford, were concerned how negative publicity would affect business from people outside the town. Cannon, at some point after the Jennifer Kelley incident, talked to Chief Brittain about the complaints he was getting and the rumors he was hearing about some people getting warnings and others getting tickets. The chief assured him that Harper was doing his job and the police were being fair. By early January, and after the Holtzclaw complaint, Joe Pete Cannon was exasperated and approached the chief one last time: ...But anyway, I came down on Monday morning, January 4, and I asked Chief Brittan about the ticket, you know, as far as the warning. I said , "One person---" Because I didn't know who it was. The man said he would rather not tell me, you know, as far as--- I said, "What's this about one person, you know, as far as not one warning, but got two warnings and still hadn't got a ticket?" So he lied to me. He said, "That ain't happened." And I told him, I said, "Fred, don't you tell me a lie." Then he gave me a name. He gave me the name of who it was. So I told him, I said, "Fred, I have come to you---" That would be as far as about the third or so time. I said, "I've talked with you, you know, as far as these different---" And I said, "I'm fed up with it." I said, "On these complaints.", and I said, "I'm telling you right now, where it won't be no surprise or no secret. At the next council meeting---" Which would be eight days off the 12th of January. "---I'm going to recommend to the Council and tell them, if I can get a move and a second, I will vote with them to terminate our part time policeman's employment." I never talked with Fred Brittan, Chief Brittan, again. And I told him, I said, "I don't want it to be no surprise or no secret." That's what I told him then. I walked out and never communicated with Chief Brittan again until I came into that Council meeting there. And did just exactly what I said I was going to do. I brought it up, explained it, and so that's where we stand now. (Advocate's Exhibit #12, deposition of Joe Pete Cannon, pp 41-42) By the time of the council meeting on January 12th, the news of Harper's employment jeopardy was all over town. Chief Brittain felt Harper was doing his job, and after the conversation with Cannon on the 4th, the chief went around talking to the town council members and others. Cannon told Ernest Kelley and Tommy Lewis on the golf course, and when Kelley asked if it was a secret, Cannon replied that it wasn't, as he had already told Chief Brittain. Harper's employment contract with the Town of Branford is a form contract used for other part-time police. It provides that the employee serves at the pleasure of the town council and is under the supervision of the Chief of Police. It also provides: The policeman is further to be answerable to the Town Council for the conduct of duties of such office and shall be subject to suspension or removal by the Town Council, for cause, at will or at pleasure of the Town Council." (Advocate's exhibit #8) The Harper issue was not specifically on the agenda for the January 12th meeting. The agenda is generally prepared on the Friday before the Tuesday meeting. Cannon did not have the clerk put it on the agenda because the "police report" was already on the agenda, as it always is. In fact, when Harper was hired by the council, it was in the "police report" portion of the agenda. The minutes of the meeting accurately and succinctly describe the vote of the council: POLICE REPORT Chief Brittain gave the police report at this time. Council President Joe Cannon brought to the attention of the Council that he has had numerous complaints about the part-time policeman. Cannon said that he had talked with the Police Chief about the high number of speeding tickets and complaints. He felt that the problem had not been resolved and that we did not need the part-time policeman any longer. MOTION MADE BY GARY HOWARD TO TERMINATE THE EMPLOYMENT OF ROY HARPER, PART-TIME POLICEMAN. SECONDED BY ROY BAGLEY. VOTE: IN FAVOR: HOWARD, BAGLEY, AND CANNON. AGAINST: MURRAY AND PURCELL. MOTION CARRIED BY MAJORITY. A couple of local businessmen were present to state they felt the high number of speeding tickets would run-off business. (Advocate's exhibit #7) Roy Harper and some others feel that the vote taken at the meeting was a foregone conclusion and that Joe Pete Cannon had already discussed the issue with other council members. Harper's wife, Linda Harper, was doing an internship in Branford for her criminal justice degree program. She was in Chief Brittain's office in December 1992, while he was on vacation, as she was working on something to do with paperwork procedures, making data entries and reorganizing the evidence room. She saw Joe Pete Cannon and Gary Howard alone in Town Clerk Donna Owen's office with the door closed. She did not overhear any of the conversation and has never personally witnessed any two elected officials discussing the matter. Chief Brittain believes that Cannon must have discussed Harper with other council members before the meeting because he remembers that at some point prior to the meeting, Cannon told him he had the votes to fire Harper. Cannon denies telling the chief he had the votes, but rather says he only said that if he had the votes he was going to fire Harper. Not even Chief Brittain's version of the conversation would support a finding that Cannon had spoken with his fellow council members about their votes. No one testified that "out of the Sunshine" discussions actually took place between Cannon and any other council members. No one actually overheard such discussions. There were, of course, very vigorous discussions of the issue in the town - discussions inspired by the complaints being made, by local businessmen worried that Branford would become another "Ludowici, Georgia", and by Chief Brittain's own advocacy on Harper's behalf. Some days after the meeting, back at Nell's Restaurant, Joe Pete Cannon told L. T. Chesson, Chief Brittain's father-in-law, that Fred let him down, that he wasn't happy with the way Fred was acting and that he (Fred) could be brought before the town council. Cannon was upset with Chief Brittain but not because he didn't take care of Jennifer Kelley's ticket. Cannon felt he presented some town concerns to the chief and Brittain was not responsive. These were some good faith concerns that the unwritten policies of the Branford police were not being even- handedly applied. Avery got two warnings; a young woman who was a model teen and who, understandably, was described as mortified by the entire turn of events and notoriety, got no warning. In summary, the abundant evidence in this proceeding fails to support a finding that Joe Pete Cannon misused his position with regard to the Jennifer Kelley ticket or the termination of Roy Harper. Rather, in response to several complaints, he approached first the police chief, then his fellow elected officials, in the appropriate forum, on an issue which he perceived to be a threat to the small town's harmony and weal.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics issue its final order and public report finding no violation of section 112.313(6), F.S. by Joe Pete Cannon, and dismissing the complaint. DONE AND RECOMMENDED this 6th day of July, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3627EC The following constitute specific rulings, pursuant to section 120.59(2), F.S., on the findings of fact proposed by each party. The Advocate's Proposed Findings 1.-2. Adopted in paragraph 1. 3.-4. Adopted in paragraph 9. 5. Adopted in paragraph 12. 6.-7. Adopted in substance in paragraph 12. Rejected as unnecessary. Adopted in substance in paragraph 13. Adopted in substance in paragraph 1. Adopted in substance in paragraph 14. Adopted in part in paragraph 17; otherwise rejected as unnecessary. Adopted in part in paragraph 15; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 18; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 16; otherwise rejected as contrary to the weight of evidence. Adopted in paragraph 6. Adopted in paragraph 25. Adopted in paragraphs 20 and 21. Adopted in paragraph 23. Adopted in part in paragraphs 28 and 29; otherwise rejected as unsupported by the weight of evidence. Adopted in part in paragraph 31; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 34; otherwise rejected as unsupported by the evidence. Adopted in part in paragraph 29; otherwise rejected as unsupported by the weight of evidence. Cannon's version of the conversation is adopted as credible and consistent. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 36; otherwise rejected as unnecessary or contrary to the weight of evidence. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 37; otherwise rejected as unsupported by the weight of evidence. Rejected as utterly without credible supporting evidence. 30.-31. Rejected as contrary to the greater weight of evidence. Respondent's Proposed Findings A.-B. Adopted in paragraph 1. Adopted in paragraph 9. Adopted in part in paragraph 34; otherwise rejected as unnecessary. Adopted in part in paragraph 35; otherwise rejected as unnecessary. F.-P. These paragraphs are substantially argument, comment on the evidence and some legal authority. The findings of fact therein are substantially adopted. COPIES FURNISHED: Stuart F. Wilson-Patton, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 David A. Glant, Esquire Post Office Box 2519 High Springs, Florida 32643-2519 Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Victor L. Contessa, Respondent, was licensed as a real estate broker and officer/director of Cavalier Southern Realty, Inc., in Port Orange, Florida, by the Florida Real Estate Commission on June 1, 1981, and was so licensed at all times pertinent to this inquiry. His license number is 0016808, and Cavalier Southern's license number is 0217638. Respondent received an MRS circular on the property in question in late 1977 or early 1978 from the listing agency out of Hollywood, Florida. The contact point on the flier for the property was a Mr. Henry W. Harbinson, Sr. This flier showed the legal description of the property as containing land "North of Spruce Creek . . . ." Mr. Contessa's view of the property did not indicate a total of 28.77 acres as described on the circular, so he called Mr. Harbinson, who advised him that the property south of Spruce Creek was included, and who sent a map tending to show this. He also, during the course of negotiations with the Chiodos for a portion of the property in December, 1977, corresponded with Mr. Konigsburg, attorney for the sellers. Mr. Konigsburg agreed to include the south portion for an additional consideration. At some time in the latter part of 1977 or early 1978, Norman H. Riley answered an advertisement in the newspaper concerning a piece of property for sale in the Spruce Creek area of Volusia County, Florida. As a result, he met the Respondent, who was acting as broker on the property. Mr. Contessa told Riley how to get out to the property, but did not accompany him there. Riley looked at the property, which consisted of a total of more than 28 acres, and, as a result, in late January, 1978, signed a contract for sale and purchase of a portion of the total property (approximately seven acres), offering a purchase price of $56,000, on which he paid a deposit of $500 to Mr. Contessa. The contract was witnessed, as to Riley's signature, by Victor Contessa, Respondent, and was executed/accepted by the seller on January 20, 1978. Closing was scheduled for on or before March 7, 1978. However, because the property in question was part of an estate and other individuals were involved in other purchases of contiguous and adjacent parcels, for some reason, the sale could not be consummated. Mr. Riley left the $500 deposit with Respondents, Contessa and Cavalier. Efforts were made to finalize the transaction for several years without success, and finally in mid-1981, Respondent Contessa contacted Riley and told him he could probably purchase the whole piece if he wanted it. Since Mr. Riley's financial situation had improved, he felt he was now in a position to buy that much, and he arranged for another real estate agent to make an appraisal of the property after talking with his bankers. This appraisal showed a value of just over $120,000 for the 28 acres. As a result, on May 4, 1981, Mr. Riley made another offer to the owners of the property, the Estate of Joseph Green, for the entire parcel, agreeing to pay $120,000. This contract described the property being bid on as: North of Spruce Creek in Government Lot 1, Section 34, Township S Range 33 East, a/k/a: 34-l6S-33E, Book 3 Page 91, Volusia County. [Emphasis added.] The previously executed contract for $56,000 contained the same legal description with the following addition: "Sections A, B, G, H, J and K on the attached Plat of the above property." The property was described in part in the formal appraisal dated April 26, 1981, as: LEGAL DESCRIPTION: Part of Assessors Sub in Section 34 Township 16 South Range 33 East Volusia County, Florida. NEIGHBORHOOD: Located on the East and West Side of Spruce Creek Road extending from Taylor Road South to the North Shore of Spruce Creek . . . . The May 4, 1981, offer of $120,000 was rejected by the owner, who countered with a demand of $170,000. Mr. Riley and Mr. Contessa discussed this, and Riley concluded he could not pay that much. During these discussions, the point was raised by Mr. Contessa that he thought there might be enough land south of Spruce Creek on which to build a house. This interested Riley; and Respondent Contessa, who indicated he had never been out to the property personally, again told Riley how to get out there. Riley found the property, got on that portion south of Spruce Creek, and walked it, satisfying himself that there was, in fact, enough land on which to build a house. When Mr. Contessa confirmed that the acreage in question included this piece south of Spruce Creek, Mr. Riley concluded that taken together, both pieces were worth more than the appraised value of $120,000; and he ultimately, on June 15, 1981, after an interim offer of $135,000 which was rejected, submitted an offer of $150,000 for the property, which was accepted. The legal description of this last contract for sale, after the discussions referenced above, was the same as on the prior one, without change, which referenced that property "North of Spruce Creek. Mr. Riley could not get a bank loan to cover the amount needed to buy the property in question, but was of the opinion he could get the necessary extra money by selling off the small triangular piece on the south side of Spruce Creek, which he believed to be included in the parcel he was buying. As a result, he negotiated a sale of that smaller parcel to another individual for $35,000. Closing on Mr. Riley's purchase of the overall parcel was delayed for some reason. During this delay period, Mr. Riley learned that the triangular parcel was not included in the land he was purchasing. There is no evidence to indicate Mr. Contessa knowingly or intentionally misrepresented the size of the property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent Victor L. Contessa be reprimanded and pay an administrative fine of $250. Since Respondent Victor L. Contessa is the owner and active firm member of Cavalier Southern Realty, Inc., further disciplinary action against the real estate corporation is unnecessary. RECOMMENDED this 7th day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 7th day of March, 1983. COPIES FURNISHED: William M. Furlow, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Mr. Victor L. Contessa Cavalier Southern Realty, Inc. 506 Ridgewood Avenue Port Orange, Florida 32019 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Mr. Fred M. Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in these consolidated cases are: Whether The Buxton Group, Incorporated, and Kavin P. Buxton (hereinafter jointly referred to as "Buxton") committed fraud, deceit, negligence, or misconduct, and, if so, whether the Department of Agriculture and Consumer Services (the "Department") may deny the issuance of or revoke various licenses held by Buxton--DOAH Case No. 10-2197; and Whether administrative denial of Buxton's existing Class "G" license is warranted--DOAH Case No. 10-2198.
Findings Of Fact The Department is the state agency responsible for, inter alia, the issuance and monitoring of various licenses related to the field of private security. It is the Department's responsibility to take disciplinary action against any licensee who violates statutes or rules relating to the licenses issued by the Department. Buxton has held, now holds, or has applied for the following licenses which are issued by the Department: D9414758: A security officer's license which has an expiration date of August 30, 2010; DI9900012: An instructor's license for which Buxton applied for, but was denied renewal; B9400126: A license to operate a security agency. Buxton's license has expired and there is an administrative action pending against it; G9402513: A statewide firearms license. Buxton's license has expired, and his request for renewal has been denied by the Department; A9700094: A private investigative agency license, effective May 19, 2008; and MB9500099: A license to manage a security agency. Buxton's license has expired, and there is an administrative action pending. The basis of the Department's disciplinary actions against Buxton's licenses (and the reason the Department has denied applications for renewals) is an incident occurring on March 27, 2008, in Pinellas Park, Florida. Buxton was on that date working as a security guard for Dew Cadillac, a new and used car dealership. At approximately 5:05 a.m., Buxton was returning to the dealership after taking a coffee break off-site. He was driving his personal automobile down an unpaved track of land on the east side of the dealership. He turned unto an unpaved area at the northern end of the lot at which time he noticed movement around an employee's pick-up truck which was parked in the car lot. It appeared a window of the truck had been broken, and there was glass lying around the outside of the vehicle. Buxton approached the vehicle and found a person (later identified as Mark Lobban) "rummaging around" in the cab of the truck. Buxton noted that two windows had been smashed, and there was a dent in the passenger side door. Buxton ordered Lobban to exit the vehicle. When Lobban came out of the truck, his eyes indicated a drugged or intoxicated state, and he reached his hand into his shirt along the front waistline of his pants. When Buxton saw that movement, he drew his weapon, a Springfield Armory XP 9mm semi-automatic handgun, for which he held a current permit to carry. Lobban took his hand out of his shirt and stated that he was looking for his cousin. Buxton ordered Lobban to the ground and began to dial 9-1-1 as he kept an eye on Lobban. Just as Buxton finished dialing 9-1-1, Lobban allegedly lunged at Buxton, then took off running. Lobban ran behind some Hummer vehicles parked nearby. Buxton says that as Lobban ran, he again reached his hand into his shirt near his waistline. That placed Buxton in fear that Lobban may have a gun, so Buxton ran to another row of Hummers for protection and began firing shots toward Lobban from his own handgun. Lobban then ran past the row of Hummers and appeared to be exiting the premises. Buxton followed Lobban and later recounted in his Firearms Incident Report, that he ran toward Lobban "to insure that the suspect was actually exiting the property. At this point, I felt he was possibly running away. I followed further in an attempt to maintain sight of the suspect." Lobban approached a hedgerow located at the west side of the dealership, attempted to jump over it, but caught his leg and fell over the hedges. By this time, Buxton had cleared the last line of parked vehicles and, thus, had no more cover. When Lobban stood up on the other side of the hedgerow, he turned to face Buxton. Buxton wrote in his report, "Fearing he had drawn a weapon behind the hedge, I fired another round, at which time the suspect turned and fled east, through the wooded area adjacent to the property." Lobban did not at any time display or fire a weapon at Buxton. Buxton returned to his cell phone which he had dropped when first apprehending Lobban. The 911 operator was just calling him back at that moment. Buxton was put through to PPPD and, within minutes, the first officer, Scott Martin, arrived at the dealership. Martin had ensured that a police perimeter was established around the dealership concurrent with his arrival. When Scott got to the dealership, he found Buxton and was briefed as to what had transpired. A brief search of the premises was commenced pending arrival of the PPPD K-9 unit. While awaiting their arrival, Buxton spotted Lobban hiding under a vehicle in the dealership's service area. Lobban was apprehended by Scott and placed in a police cruiser. Scott determined that Lobban was impaired, probably by alcohol, and was essentially incoherent. Scott did an "article search" of the premises to see if any items belonging to Lobban could be found. A cell phone and wallet were recovered, but there was no sign of a firearm. The search did not concentrate on a firearm specifically, but the search was intended to find any item that Lobban had handled. The K-9 unit was able to trace Lobban's scent through the Hummers, across the hedgerow and back to the service area. The search concentrated on the areas where Lobban had been known to have crossed. No search was done of the wooded area behind the hedge, because the tracking dogs did not point to that area as having been traveled by Lobban. Scott reported in to his headquarters after hearing Buxton's explanation of the events that transpired. The discharge of a weapon in that scenario seemed unwarranted to Scott, so he reported it to his supervisor. Within minutes, Detective Doswell arrived at the dealership to further investigate the situation. Doswell arrived to find Lobban already in custody and Buxton standing in the parking lot with another security guard. Buxton told Scott he had fired four shots at Lobban initially and then two more shots after Lobban jumped the hedge. However, there were five shell casings found in the first location and only one near the hedgerow. The events concerned Doswell enough that he asked Buxton to come into headquarters and make a statement about what had occurred. Buxton initially agreed to do so. After a few minutes, however, he handed his cell phone to Doswell so that Doswell could talk to Buxton's attorney. Doswell and the attorney set up a meeting for later that same day, a Thursday. The attorney later called Doswell and said he and Buxton could not come in until the next day (Friday), so the meeting was rescheduled for that day. On Friday, March 28, 2010, Buxton and his attorney arrived at the PPPD headquarters. Doswell informed Buxton that he was investigating the event as a probable illegal discharge of a firearm and that criminal charges could be filed. Buxton was not read his Miranda rights at that time however, in that no charges had yet been filed. At some point, Doswell determined that Buxton had been involved in another incident relating to the discharge of his firearm while on duty. In that case, Buxton was working at a bowling alley when a group of kids attempted to "jump him." One kid spit on Buxton and during the brief confrontation, Buxton pulled his firearm. Buxton discharged his gun, firing into the ceiling of the establishment (because, said Buxton, someone hit his arm just as he was shooting. Buxton did not say what he was aiming at when he fired.). After interviewing Buxton and his attorney, Doswell revisited Dew Cadillac and did some further investigation. Fragments of bullets from Buxton's firearm had been recovered from the tires of two Hummers on the car lot. In order to obtain licenses which allow a person to use a firearm in conducting their authorized activities, a person must undergo a background check and certain training and education. The Class "D" license held by Buxton required 40 hours of training (which can be dispensed with if the applicant has prior corrections or law enforcement experience). The training necessarily included instruction from the Firearm Instructor's Training Manual (the "Manual"). The Manual specifically warns against the unauthorized use of deadly force, i.e., discharging a firearm at an individual. The Manual stresses the need to retreat and disengage, rather than entering into a situation that might require using the firearm. Several examples are set out in the Manual to provide applicants guidance about how to avoid using deadly force. Two of those examples follow: Situation #1: You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus, increasing the probability of armed conflict. The man is running away from you, and there is no threat of death or great bodily injury. Don't shoot. Situation #2: You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well-marked security vehicle, you observe the suspects' vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver's side of the suspect's vehicle and, almost simultaneously, the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don't shoot. Record the license number and description of the vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. According to the expert testimony at final hearing (which was not rebutted or contradicted by Buxton), each of the above-described situations is more egregious than the one Buxton encountered at Dew Cadillac. It is clear that discharge of a firearm in Buxton's situation would be contrary to the guidance provided in the training materials. Each of the facts stated herein are based upon the testimony of live witnesses and written statements from police and investigative reports. Each of the witnesses appeared knowledgeable about his area of testimony, and each was credible. Buxton provided no evidence to contest or rebut any of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying Buxton's licensure application for License No. G9402513 and taking such action as the Department deems appropriate as to each of Buxton's other licenses issued by the Department. DONE AND ENTERED this 10th day of September, 2010, 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 10th day of September, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800 Tracy Sumner, Esquire Department of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168 Kavin P. Buxton Post Office Box 13644 St. Petersburg, Florida 33733
The Issue Whether Respondent Banta is guilty of dishonest dealing, culpable negligence, or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, (1993). Whether Respondent is guilty of operating as a real estate broker without a valid and current license, in violation of Section 475.25(1)(e), Florida Statutes (1993). Whether Respondent is guilty of failing to provide written agency disclosure to a party in a real property transaction, in violation of Section 475.25(1)(q) and (1)(e), Florida Statutes (1993) and Rule 61J2-10.033, Florida Administrative Code.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0165881. As of March 31, 1992, the Respondent failed to renew his real estate broker’s license, for the 2-year period of April 1, 1992 to March 31, 1994. Renewal would have consisted of completing the required continuing education, paying the required fee, and sending the required form to the Department of Business and Professional Regulation. The Respondent’s license was delinquent after March 31, 1992. As of March 31, 1994, the Respondent had not renewed his broker’s license and his license remained delinquent. On May 9, 1994, the Respondent renewed his license, in order to make a claim for a commission. As of March 31, 1996, the Respondent failed to renew his license again. His license was delinquent after March 31, 1996, and was delinquent as of the hearing date. The Respondent operated as a real estate broker during the period of approximately February 1993 through May 1994, specifically including a period when his license was delinquent as “involuntary inactive.” Sam Morrow is a licensed real estate broker and is a real estate developer and home builder. Effective February 10, 1993, Respondent entered into an Independent Contractor Agreement with Florida’s Preferred Homes, Inc. (FPH), a company in which Morrow is a principal. Respondent was originally retained on a fixed salary basis for an indefinite term to assist in finishing a number of low-income housing tax credit apartment applications for tax credits. At the request of Morrow, Respondent assumed other duties. Respondent represented FPH, and other business entities of which Morrow was the principal, in other business dealing from February 10, 1993 through May 24, 1994, when Respondent was terminated. The Respondent received a fixed salary throughout the period of his association with Morrow with the promise of additional undefined compensation in the future. For the purposes of this matter, Respondent was an employee of FPH and was supervised by Morrow. Respondent’s association with Morrow was not an exclusive employment agreement. During this same period in February 1993, Morrow became engaged in a transaction involving affordable housing. The transaction involved the purchase of land, by a purchasing entity, the Community Housing Trust, Inc., a 501(c)(3) non-profit corporation, from the seller, Rouse Road Corporation. After this purchase the property was to be transferred to another corporation, of which Morrow was to be the principal along with another business partner, and affordable housing units would be constructed upon the land and then sold to the public. The structure of the purchasing and developing entities was complex, involving various public and private entities, including Orange County. Morrow was a principal and the overall coordinator of the entire project which came to be known as the Oak Grove Circle project. There was no specific agreement for the Respondent to receive any particular additional compensation for the Respondent’s services in the affordable housing project. Respondent was familiar with the property that the Rouse Road Corporation had for sale and brought it to the attention of Community Housing Trust, as a prospective purchaser. This particular property was suitable for purchase and development as an affordable housing project. Respondent facilitated the purchase and prepared the contract for sale and purchase which was executed by the parties: Community Housing Trust, as purchaser, and Rouse Road Corporation, as seller. The contract was executed on March 5, 1993 for the property later known as the Oak Grove Circle property. Respondent represented neither the purchaser nor the seller in the transaction. He considered himself a transactional broker. The contract indicates on its face that Respondent, J. Scott Banta, is the real estate broker in the transaction. The contract called for the payment of a 10% commission to the Respondent. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the seller, Rouse Road Corporation. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the purchaser, Community Housing Trust, Inc. In September 1993, Morrow formed a Florida corporation known as FPH Venture 2, Inc. He was the sole incorporator. During this period in the fall of 1993, certain negotiations took place regarding the structure and goals of FPH Venture 2, Inc. The principals of the firm were to be Sam Morrow and Long Farms North. All of the prospective partners agreed that because of the need for cash equity, the real estate commission on the Oak Grove Circle property would remain in the FPH Venture 2 proposed project. For this consideration Respondent expected to be a principal also. The goals for the FPH Venture 2 project were set out in some detail in a memorandum developed by the prospective venturers and typed by Respondent. Respondent was included as one of the principals. The goals memorandum provides that the 10% commission payable to Respondent on the Oak Grove Circle purchase and sale would be assigned by Respondent to FPH Venture 2 “for cash flow and total profit benefits.” Respondent’s understanding of the proposed FPH Venture 2 project was that he was to receive a one-third ownership participation in FPH Venture 2, Inc., which was to have included the proposed Oak Grove Circle project and another proposed project in Lakeland, Florida, in exchange for the prospective commission. The terms of Respondent’s proposed participation in FPH Venture 2 were never reduced to any form of written agreement. Nor was Respondent ever made a principal in the company or issued any stock, or otherwise given anything to evidence his interest in the proposed venture. The closing of the purchase and sale of the property, later known as the Oak Grove Circle property, as anticipated by the contract for sale and purchase, was consummated on May 19, 1994. James L. Bishop, vice-president of Community Housing Trust, Inc., executed the settlement statement which provided for payment of $28,000 real estate commission to J. Scott Banta from the seller’s proceeds of closing. The commission check was delivered to Respondent at the closing without objection. On the day after closing of the Oak Grove Circle purchase and sale, May 20, 1994, Respondent gave Morrow a memorandum suggesting a procedure for payment of the $28,000 commission into FPH Venture 2, Inc. On May 24, 1994, the matter culminated in a conversation between Respondent Banta and Morrow. Respondent requested Morrow reduce their agreement regarding his proposed participation in FPH Venture 2, Inc., to writing. Morrow refused to do so, and at 4:45 p.m. on the same day, terminated Respondent’s employment, stopped payment on Respondent’s consulting fee check for the prior week and changed the locks on his office with Respondent’s personal property still inside. Respondent has retained the commission from the sale of the Oak Grove Circle property. Morrow’s account of this business relationship with Respondent and the agreed disposition of the proceeds of the commission is not credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 475.25(1)(e) and (1)(q) and be found not guilty of violating Section 475.25(1)(b), Florida Statutes (1993). It is further recommended that Respondent be fined the sum of $1,000 and that his license be suspended for a period of three months, subject to reinstatement upon such reasonable conditions as the Florida Real Estate Commission shall require. RECOMMENDED this 8th day of January, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801 Allen C.D. Scott, II, Esquire Scott & Scott, P.A. 99 Orange Street St. Augustine, Florida 32084 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801
The Issue The issues are: (1) Whether Walter Vernon Creech (Petitioner) is entitled to purchase past service in the Florida Retirement System (FRS) for a period of service with the City of Live Oak (City), during which time he became vested in the City's local retirement plan and elected to retain those vested benefits prior to commencement of employment with the Suwannee County Sheriff's Department, and (2) whether Petitioner is entitled to variance and waiver of regulations which prohibit purchase of prior service for FRS inclusion when the member was vested at the time in a local retirement system.
Findings Of Fact Petitioner was employed as a police officer with the City of Live Oak, Florida, and is currently a deputy sheriff with the Suwannee County Sheriff's Department. On March 1, 1990, the Suwannee County Sheriff's Department assumed the functions of the Live Oak Police Department and the Police Department was disbanded. Petitioner and other members of the Police Department became employees of the sheriff's office. Petitioner has been continuously employed by the sheriff's office since 1990 and presently is the patrol commander for the Sheriff. The ordinance creating the City of Live Oak Retirement System was repealed on October 12, 1990. The pension plan was terminated. An annuity was purchased by the City of Live Oak following termination of the pension plan from the Franklin Life Insurance Company for Petitioner, a vested member of the former pension plan. The annuity entitled Petitioner to future benefits. Non-vested members of the police force were refunded their previous contributions to City of Live Oak retirement plan. Several months prior to the retirement annuity purchase and the repeal of the City of Live Oak Retirement System, Petitioner had elected, on April 9, 1990, by ballot provided by Respondent to retain his vested benefits with the annuity provided by the City and "begin membership in the [FRS] effective March 1, 1990." The ballot choice selected by Petitioner stated specifically that "I understand I may not purchase past service in the FRS for service under the local retirement system which may be used to obtain a benefit." Petitioner's position is that he was not aware on April 9, 1990, that he could select the second ballot choice that would have permitted him to withdraw from City of Live Oak Retirement system and join the FRS at that time. He represents that he was told specifically by the sheriff at the time that he could not elect this option. The sheriff is now deceased. At the time he joined the sheriff's office, Petitioner had not vested in the FRS, although he had prior service as a state employee. No evidence establishes on-site visitation by Respondent employees upon transfer of police functions to the County Sheriff's Office, or direct advice by Respondent employees to Petitioner or any other transferring employees. A letter, however, dated April 18, 1990, from Loraine Voss, a former Bureau Chief with Respondent, documents that there were communications between Respondent employees and the now-deceased sheriff. In pertinent part, the letter advised that employees were eligible to purchase past service credit in FRS provided such past experience would not be used to provide a benefit in another retirement scenario. Absent the letter authored by Voss, Respondent provided no documented direction regarding retirement options to Petitioner at the time of his election to retain his service in the city's retirement annuity. The action of local authorities (i.e., the mayor of the City of Live Oak and the county sheriff) in advising the transferees on retirement matters was not taken at the behest of or on behalf of Respondent. As established by testimony of the now-retired police chief, Jack Garret, members of the police force were aware at the time that their contributions could be withdrawn from the City's retirement fund even though a member might be vested. Before the police force of the City of Live Oak was disbanded, Marvin Clayton, a representative of the Florida Department of Insurance, addressed the members of the force. Clayton recalled that at the February 9, 1990, meeting, he informed the officers of the force that persons who were vested in the City's plan could have their contributions refunded and thereby become eligible to buy past service with the FRS. Local police and fireman retirement funds were regulated by the Department of Insurance at that time. In 1998, Petitioner changed his mind. He contacted Respondent's representative in order to purchase additional retirement credit in FRS for his time with the City of Live Oak Police Department. By letters dated June 15, 1998, and again on October 15, 1998, he was informed by Respondent's representatives that he was not eligible to purchase such service because of provisions of Sections 112.65(2) and 121.081(1)(h), Florida Statutes. As established at the final hearing, Petitioner would have to assign any benefits of his annuity to FRS and pay required FRS contributions plus interest since 1990 in order to acquire FRS credit today for his time with the City of Live Oak Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter an order denying (1) the Petition for Waiver and Variance and (2) also denying the request to be permitted to purchase for creditable FRS service the time spent by Petitioner in the employment of the City of Live Oak Police Department. DONE AND ENTERED this 23rd day of August, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of August, 2000. COPIES FURNISHED: Robert B. Button, Esquire Division of Retirement 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stanley M. Danek, Esquire 2114 Great Oak Drive Tallahassee, Florida 32303 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Should Petitioner impose discipline on Respondent in association with his auxiliary law enforcement certificate, correctional certificate, and law enforcement certificate?
Findings Of Fact In consideration of the election of rights form, in which Respondent did not dispute the allegations within paragraph 1 to the Administrative Complaint, it is found that Respondent was certified by the Criminal Justice Standards and Training Commission on September 18, 1980, and was issued Auxiliary Law Enforcement Certificate No. 75688, and on April 12, 1983, Correctional Certificate No. 75687, and on December 29, 1983, was issued Law Enforcement Certificate No. 75686. As an off-duty officer for the Jacksonville Sheriff's Office (JSO), Respondent was employed by Kings Ridge Apartment Complex (the apartment complex). In that capacity Respondent over-billed the apartment complex in the amount of $1,134.00 for work he did not perform. In this connection, Respondent submitted paperwork claiming payment from the apartment complex that he was not entitled to receive. Respondent had maintained activity logs indicating that he was engaged in his duties at the apartment complex during times that he was not located on that property. An internal investigation was performed by the integrity unit of the JSO concerning Respondent's conduct. As part of the investigation Respondent was interviewed. After being advised of his constitutional rights, Respondent acknowledged his false claims for payment for work that was not done at the apartment complex. On March 19, 2001, Respondent retired from his position with the JSO. In response to action taken by the State Attorney for the Fourth Judicial Circuit, State of Florida, Respondent participated in a Pre-trial Intervention Program through a Deferred Prosecution Agreement which was approved by the State Attorney and Court, and signed by Respondent and his counsel. Pertinent to that agreement, Respondent was required to make restitution for the $1,134.00 received as compensation not earned. According to the investigative report by the JSO, that money was repaid to the apartment complex. In addition, in accordance with the Deferred Prosecution Agreement, Respondent by executing that agreement on May 8, 2001, had agreed to resign from the JSO and to not seek further employment by the JSO for five years. The period of deferred prosecution was one year, read to mean one year from May 23, 2001, when the presiding judge signed the agreement. The record does not reveal that Respondent failed in any manner to meet the requirements of the Pre-trial Intervention Program through the Deferred Prosecution Agreement.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered which revokes the auxiliary law enforcement certificate, correctional officer certificate and law enforcement officer certificate of Respondent. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Wesley Rolack 12439 Teal Run Court Jacksonville, Florida 32258 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
