The Issue The issue presented is whether Respondent is guilty of the allegations in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been licensed as a restricted barber and operating under the name of Miracles in Motion, located in Tampa, Florida. On May 9, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006030590 in the amount of $400. The fine, due to be paid by July 9, has not been paid. On October 13, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006058259 in the amount of $250. The fine, due to be paid by December 24, has not been paid. Also on October 13, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006058271 in the amount of $250. The fine, due to be paid by December 24, has not been paid. On October 24, 2006, the Department issued a Uniform Disciplinary Citation against Respondent in case numbered 2006063364 in the amount of $400. The fine, due to be paid by December 24, has not been paid. Respondent did not dispute the facts contained in these four Citations. Under the terms of the Citations, they, therefore, automatically became final orders 30 days after they were issued. Since Respondent has not paid those fines, he fails to be in compliance with four final orders of the Department. The total amount of fines not paid by Respondent pursuant to the four Citations involved in this proceeding is $1,300.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent is not guilty of violating Section 476.204(1)(i), Florida Statutes, and dismissing the Amended Administrative Complaint filed against him. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2009. COPIES FURNISHED: Robyn Barineau, Executive Director Barbers' Board Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Philip F. Monte, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Elvis O'Neil Crooks 7117 Wrenwood Circle Tampa, Florida 33617
The Issue The issue for determination is whether Respondent engaged in conduct unbecoming a public servant in violation of Chapter 89-404, Section 8, Laws of Florida, as amended by Chapter 90-395, Section 8, Laws of Florida (the "Civil Service Act") and Rules 3-1.1 and 3-1.3 of the Pinellas County Sheriff's Office ("Rules 3-1.1 and 3-1.3").
Findings Of Fact Petitioner is a constitutional officer of the State of Florida who is responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times pertinent to this case, Respondent was employed by Petitioner. On September 6, 1999, Respondent responded as backup deputy sheriff to the apartment of Mr. Cornell Cunningham and Ms. Karen Stewart. The purpose of the response was to arrest Mr. Cunningham on a civil warrant for failure to pay child support. Deputy Ward Snyder was the primary deputy on the call. Deputy Snyder is also employed by Respondent. It was raining outside when the two deputies arrived at Mr. Cunningham's residence. Mr. Cunningham invited both deputies inside. Once inside, Deputy Snyder talked to Mr. Cunningham and advised him of the civil arrest warrant. Deputy Snyder also contacted the Sheriff's Office to confirm that the warrant was still valid. While Deputy Snyder was talking to Mr. Cunningham and the Sheriff's Office, Respondent conducted a security search of the residence to confirm that no one else was present in Mr. Cunningham's apartment. By the time Respondent completed the security search, Deputy Snyder had finished his telephone call. Respondent concluded his search of the residence in the kitchen. While standing in the kitchen, Respondent stood adjacent to and viewed a countertop that separated the kitchen from the dining area. The kitchen and counter top were well lit with florescent lighting. Respondent observed a marijuana seed on the countertop. Respondent picked the seed up from the countertop and held it up for Deputy Snyder to see. Respondent said, "We got a problem here." Deputy Snyder and Mr. Cunningham were standing in the dining room adjacent to the countertop that separated the kitchen from the dining room. Deputy Snyder had a clear and unobstructed view of the countertop. A Nike shoebox was on the countertop inside the kitchen. The shoebox contained a hinged top that opened from one side and also contained circular holes in the sides. Respondent, Deputy Snyder, and Mr. Cunningham were within two or three feet of the shoebox. The top on the shoebox was closed. There was no other access into the shoebox other than through the top of the shoebox. Respondent removed his flashlight from his belt, turned it on, shined the light into the holes in the side of the shoebox, and observed the contents of the shoebox. Respondent then opened the shoebox and looked inside the shoebox. Respondent observed a small bag of marijuana and a small scale inside the box. Respondent then told Deputy Snyder that there was "a problem." Respondent then showed Deputy Snyder the contents of the box. Mr. Cunningham denied ownership of the shoebox as well as any knowledge of its contents. The deputies arrested Mr. Cunningham based on the civil warrant for failure to pay child support. Mr. Cunningham protested his arrest and asserted that the matter had been taken care of. However, he did not physically resist, did not threaten either deputy, and did not display any intent to flee. Neither deputy charged or arrested Mr. Cunningham at the time with any offense related to the marijuana or the scale. Deputy Snyder transported Mr. Cunningham to the Pinellas County Jail on the original civil warrant. While Deputy Snyder was transporting Mr. Cunningham to jail, Respondent contacted Deputy Snyder by radio. Respondent told Deputy Snyder that Respondent was going to charge Ms. Stewart with criminal offenses related to the possession of marijuana and the scale. Mr. Cunningham overheard the radio conversation between the two deputies and stated that he would claim ownership of the marijuana and scale. Upon hearing this, Deputy Snyder advised Mr. Cunningham of his rights. Mr. Cunningham then denied ownership of the contraband. While Deputy Snyder transported Mr. Cunningham to jail, Respondent remained at Mr. Cunningham's residence and awaited the arrival of Ms. Stewart. With the consent of Ms. Stewart, Respondent conducted a further search of the residence. The further search revealed additional marijuana in a drawer located in the kitchen where the shoebox was located. Respondent combined the marijuana found in the drawer with the seed on the countertop and the marijuana previously found in the shoebox. Respondent then seized the contraband and proceeded to the jail where he charged Mr. Cunningham with felony possession of marijuana and misdemeanor possession of paraphernalia. Respondent prepared an arrest report stating that Respondent had observed marijuana "scattered" on top of the kitchen counter. Respondent also stated in the report that, "Laying next to the scattered marijuana in a partially opened Nike shoebox, was a clear plastic baggie filled with marijuana and also laying next to that baggie was a silver hand-held weight scale." Respondent’s supervisor, Sergeant Robert Helmick, approved the report on the same day that Respondent prepared the report. On the following day, September 7, 1999, Deputy Snyder prepared his supplemental report of the events occurring at the Cunningham residence. In his report, Deputy Snyder stated that Respondent "pointed out a seed on the kitchen countertop. There was a Nike shoebox also on the countertop. Deputy Broome used his flashlight to illuminate the inside of the box by shining the light through a hole in the box. Deputy Broome then opened the box and displayed a bag of what appeared to be marijuana and a small balance scale." Deputy Snyder’s report also recited the events occurring in his vehicle as he transported Mr. Cunningham to jail. Sergeant Helmick, who was off duty that day, did not review or approve Deputy Snyder's report. Rather, Corporal Larry Weiland approved Deputy Snyder's report. Sergeant Helmick did not see Deputy Snyder’s report until much later. Three days later, on September 10, 1999, Respondent participated in a pre-filing investigation conducted at the office of the State Attorney for Pinellas County. Assistant State Attorney Patricia Cope conducted the investigation. As part of the investigation, Ms. Cope took the sworn testimony of Respondent. In his testimony to Ms. Cope, Respondent repeated the same version of events found in his report. Respondent testified to Ms. Cope that he had observed marijuana scattered on the countertop and that the top of the shoebox on the countertop was ajar. Respondent further testified that he was able to see the marijuana and the scale inside the shoebox through the space created by the partially open top of the shoebox. Ms. Cope specifically asked Respondent whether the shoebox was open or closed in order to confirm that Respondent's search was within the scope of the plain view doctrine. Respondent testified that the shoebox was open. Ms. Cope did not speak with Deputy Snyder or review his report. As a result of the investigation and the information provided by Respondent, Mr. Cunningham was charged with felony possession of marijuana and misdemeanor possession of paraphernalia. Sometime after Ms. Cope's conversation with Respondent, Deputy Snyder spoke with Sergeant Helmick concerning the discrepancies between the two reports filed by Deputy Snyder and Respondent. Sergeant Helmick advised Deputy Snyder to allow the discrepancies to be worked out by the state attorney’s office and to allow the criminal process to run its course. Sergeant Helmick did not report the discrepancies to the state attorney’s office, to his supervisors, or to anyone else. At the time, Sergeant Helmick did not initiate any complaint or investigation against either Respondent or Deputy Snyder. In June 2000, depositions were set in the criminal prosecution of Mr. Cunningham. Ms. Cope contacted Deputy Snyder to inquire about the possibility of having the shoebox tested for fingerprints. At that time, Deputy Snyder directed Ms. Cope's attention to the discrepancies in the respective reports prepared by Deputy Snyder and Respondent. Ms. Cope reviewed the reports and the discrepancies between the two reports. Ms. Cope concluded that the discrepancies would create a problem in the criminal prosecution of Mr. Cunningham. The discrepancies between the accounts by Respondent and Deputy Snyder created the possibility that Respondent had conducted an illegal search of the shoebox that would render the evidence seized as a part of that search inadmissible. The plain view doctrine applicable to the law of search and seizure would allow the search of the shoebox if the top had been ajar and the contents of the shoebox could be observed. However, the search would not be lawful if the shoebox top was closed and observation of the contents could have only been accomplished by shining a light through the holes in the box. The differing statements in the reports of the two deputies placed the credibility of Respondent in question. No independent evidence was available, including the testimony of Mr. Cunningham, from which it could be ascertained which deputy was being truthful. The State Attorney’s Office deemed it unfair to the defendant, the court, and the witnesses to proceed on a case where the prosecution could not be certain if the evidence was properly seized. Ms. Cope referred the matter to Mr. Robert Lewis, her supervisor. Mr. Lewis reviewed the reports of the two deputies and agreed with Ms. Cope's assessment that the discrepancies precluded any further criminal prosecution of Mr. Cunningham. Ms. Cope cancelled the depositions set in the Cunningham case on the grounds that Respondent had been accused of lying and that the two investigating police officers recalled two inconsistent views of the events that occurred at Mr. Cunningham's residence. Mr. Lewis then instructed Ms. Cope to enter a nolle prosequi of the charges against Mr. Cunningham. After the State Attorney's Office filed the nolle prosequi, the State Attorney’s Office referred the matter to the Sheriff's Office. The matter was brought to the attention of Major Samuel F. Lynn, the commander of the road patrol division. Major Lynn prepared an administrative inquiry form that disclosed the allegations communicated to him by the State Attorney’s Office. Thereafter, the Administrative Investigation Division of the Sheriff’s Office ("AID") initiated an investigation. During the investigation, Respondent and Deputy Snyder each provided a sworn statement to the investigators. The investigators also obtained a sworn statement from Ms. Cope and a letter from Mr. Lewis. The investigators were unable to locate Mr. Cunningham and therefore did not interview him or ascertain his account of the matters at issue in this proceeding. During the investigation, Respondent had the opportunity to offer additional information or comments. Respondent’s attorney placed a statement on the record at the conclusion of Respondent’s sworn statement. Respondent did not offer any witnesses on his behalf or provide the investigators with any information pertaining to the location of Mr. Cunningham. At the conclusion of the investigation, the Board conducted a hearing concerning the charges against Respondent. The charges were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, subsection 4: violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.1 (Level Five violation), 006, relating to untruthfulness by being untruthful in relation to the seizure of narcotics at the Cunningham residence. Violation of Rule and Regulation of the Pinellas County Sheriff’s Office, 3-1.3 (Level Three violation), 060, relating to standards of conduct by bringing discredit upon the Pinellas County Sheriff's Office by being untruthful and by inaccurately documenting facts and circumstances submitted to the State Attorney’s Office. Respondent was present at the hearing, had an opportunity to offer a statement, responded to questions, and presented additional evidence. At the conclusion of the hearing, the Board determined that Respondent violated the Civil Service Act and Rules 3-1.1 and 3-1.3. The violations resulted in a cumulative point total of 65 points under the progressive discipline policy of the Sheriff's office. The 65 points were added to 23 discipline points that the Sheriff's Office had previously assessed against Respondent for a total of 88 progressive discipline points. When a deputy has 88 progressive discipline points, Petitioner's progressive discipline policy authorizes discipline that ranges from a ten-day suspension to termination. Petitioner terminated Respondent's employment. Respondent violated relevant portions of the Civil Service Act and Rule 3-1.1 by being untruthful in relation to the seizure of narcotics at the Cunningham residence. Respondent conducted an improper search at the residence of Mr. Cunningham. Respondent then charged Mr. Cunningham with a felony and misdemeanor offense related to the fruits of that search. Respondent then prepared a false report relating the events occurring at Mr. Cunningham's residence and then provided false testimony under oath to the State Attorney’s Office. Respondent violated relevant portions of the Civil Service Act Rule 3-1.3 and by bringing discredit upon the Sheriff's Office. Respondent was untruthful by inaccurately documenting facts and circumstances submitted to the State Attorney’s Office. Respondent's conduct discredited the Sheriff's Office by encouraging mistrust of law enforcement officers and by creating the appearance that persons in law enforcement engage in improper tactics to effectuate an arrest. Respondent's untruthfulness resulted in the improper arrest and prosecution of an individual. Truthfulness on the part of a deputy sheriff is an important part of the job. It is necessary in order to maintain discipline and to preserve the integrity of the agency and the functions performed. Respondent's untruthfulness violated those essential elements and exposed the Sheriff's Office to the potential for civil liability for an improper arrest. Although much of Respondent's testimony was credible and persuasive, there were significant parts of Respondent's testimony that were neither credible nor persuasive. The flawed part of Respondent's testimony was inconsistent with prior statements by Respondent and with the testimony of Deputy Snyder. For the most part, no one inconsistency in Respondent's testimony, standing alone, would be sufficient to adversely affect Respondent's credibility. However, the cumulative effect of all of the inconsistencies deprives Respondent's testimony of credibility and persuasiveness concerning material issues in this case. In an earlier sworn statement to AID, Respondent testified that he found marijuana on the countertop in Mr. Cunningham's apartment, showed the seed to Deputy Snyder, and then looked inside the shoebox. At the final hearing, however, Respondent testified that he found the marijuana seed on the countertop, saw the marijuana in the shoebox, and then walked over to Deputy Snyder to show him the marijuana seed. Respondent further testified at the final hearing that he could not recall whether he picked up the seed first or saw the marijuana in the shoebox first. Respondent made inconsistent statements regarding the location of Deputy Snyder and Mr. Cunningham at the time that Respondent found the seed and searched the shoebox. At the final hearing, Respondent insisted that Deputy Snyder and Mr. Cunningham never got within ten to fourteen feet of the shoebox. In an earlier sworn statement to AID, however, Respondent indicated that Deputy Snyder and Mr. Cunningham were two to three feet from the shoebox. Respondent made inconsistent statements regarding the position of the top of the shoebox at the time that Respondent found the seed and searched the shoebox. Respondent testified at final hearing that the shoebox was open between 1.5 and 2.0 inches. In a sworn statement to AID, however, Respondent testified that the top of the shoebox was open less than one inch. Respondent made inconsistent statements regarding the manner in which he shined light from his flashlight into the shoebox. At final hearing, Respondent testified that he shined light into the holes on the side of the shoebox. In an earlier deposition, however, Respondent testified that he shined the light in the top of the shoebox where the top was open and could not remember if the shoebox had holes. Respondent made inconsistent statements regarding the location of the marijuana on the countertop. At the final hearing, Respondent indicated that the marijuana was spread out into the center of the dark countertop where there was a white paint spot, as shown in one of the photographs in evidence. However, the drawing provided during the course of Respondent's earlier deposition did not indicate that marijuana was spread into the center of the dark countertop where the white paint spot was located. The testimony of Respondent differed from that of Deputy Snyder regarding the location of the shoebox. Respondent placed the shoebox close to the wall where it may have been more difficult for Deputy Snyder to view the box. Deputy Snyder placed the shoebox in the middle of the countertop where it was more easily seen. The testimony of Respondent differed from that of Deputy Snyder regarding the vantage points of Respondent and Deputy Snyder. Respondent placed Deputy Snyder ten to fourteen feet from the shoebox and stated that Deputy Snyder could not see the shoebox or the marijuana from that vantage point. Deputy Snyder placed himself within two to three feet of the shoebox and stated that he had an unobstructed and clear view of the countertop and the shoebox. Deputy Snyder's testimony was consistent with an earlier sworn statement to AID by Respondent indicating that Deputy Snyder and Mr. Cunningham were two to three feet from the shoebox. See Finding of Fact 43. The testimony of Respondent differed from that of Deputy Snyder regarding the amount of marijuana on the countertop. Respondent stated there was a considerable amount or marijuana on the countertop. Deputy Snyder stated there was no marijuana on the countertop except the seed displayed to him by Respondent. The testimony of Respondent differed from that of Deputy Snyder regarding the actions taken by Respondent in looking into the shoebox. Respondent testified that he identified the debris, saw the marijuana in the shoebox, showed the seed to Snyder, and then looked into the shoebox. Deputy Snyder testified that Respondent showed him a seed, shined his light into a hole in the shoebox, and then opened the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding the actions of Respondent after discovering the marijuana and the shoebox. Respondent claimed he walked from the kitchen into the living and dining area to display the seed to Deputy Snyder. Deputy Snyder testified that Respondent remained in the kitchen and displayed the seed across the countertop. The testimony of Respondent differed from that of Deputy Snyder regarding the issue of whether Respondent had his flashlight out before he looked into the shoebox or removed it in order to look inside the shoebox. Respondent testified he had the flashlight out the entire time he was in the residence. Deputy Snyder stated that Respondent removed the flashlight from his belt in order to look into the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding the issue of whether Deputy Snyder was on the telephone when Respondent observed the marijuana and shoebox and pointed these items out to Deputy Snyder. Respondent stated that Deputy Snyder was on the telephone when these events occurred. Deputy Snyder testified that he had completed his call by the time Respondent arrived in the kitchen. The testimony of Respondent differed from that of Deputy Snyder regarding the ability of Deputy Snyder and Mr. Cunningham to be in the dining room and close to the countertop. Respondent claimed that the dining room table and chairs did not allow sufficient room for Deputy Snyder and Mr. Cunningham to be within two or three feet of the countertop in the dining room. Deputy Snyder and other testimony by Respondent concerning the dimensions of the dining room and table and chairs indicated there was sufficient room for Deputy Snyder and Mr. Cunningham to stand in the dining room within two or three feet of the shoebox. The testimony of Respondent differed from that of Deputy Snyder regarding Respondent's testimony that he searched the shoebox, in part, because he was concerned over the existence of booby traps in the shoebox. Deputy Snyder saw no such concern indicated in Respondent’s actions. Respondent's testimony that he was concerned the shoebox contained booby traps is neither credible nor persuasive. Respondent testified that the room was sufficiently well lit to allow him to clearly see the marijuana inside the partially open shoebox without shining his flashlight into the shoebox before opening it. Respondent attempted to explain why he used his flashlight in a well-lit kitchen by expressing concern that the shoebox may have contained booby traps. Regarding the discrepancies between the testimony of Respondent and Deputy Snyder, there is no apparent motive for Deputy Snyder to fabricate his version of the events or to attempt to create any form of disciplinary problem for Respondent. Respondent had no prior experience with Deputy Snyder that would create a reason for Deputy Snyder to be untruthful. Respondent suggested that Deputy Snyder fabricated his report and testimony in exchange for a transfer to a position as a detective. That testimony is neither credible nor persuasive. Deputy Snyder’s transfer occurred months before any concerns arose pertaining to Respondent. There is no evidence that Deputy Snyder played any role in the initiation of the investigation. Deputy Snyder's initial disclosure to his supervisor did not result in any investigation or action against Respondent. The transfer to the detective unit was a lateral transfer without any increase in rank, pay, or benefits. The evaluation system in effect at the Sheriff's Office provided a specific component for self-initiated arrests. The arrest of Mr. Cunningham in this case falls into the category of self-initiated arrests and could have resulted in a positive evaluation component for Respondent, who already had 23 disciplinary points against him. Respondent has a prior disciplinary history. In June 1999, Respondent received a one-day suspension and five disciplinary points for violating rules that are not relevant to this proceeding. In January 2000, Respondent received a three- day suspension and 15 disciplinary points for violating rules that are not relevant to this proceeding. The two violations resulted in 20 progressive points with a range of discipline from reprimand to a three-day suspension. In August 2000, Respondent received a seven-day suspension for violating rules that are not relevant to this proceeding. The violations consisted of three level three violations resulting in the assignment of 40 disciplinary points. The 40 points were combined with ten "modified points" from the prior violations and resulted in a total of 50 progressive points with a range of discipline from a five-day suspension to termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of conduct unbecoming a public servant and terminating Respondent's employment. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 1st day of May, 2001. COPIES FURNISHED: Richard C. Millian, Esquire Joseph A. Corsmeier, Esquire Tew, Zinober, & Barnes, L.L.P. 2655 McCormick Drive, Prestige Professional Park Clearwater, Florida 33759 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause, alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact Following a July 28, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about September 3, 2003, the matter was referred to the Division of Administrative Hearings. It appearing on the face of the referral package that Respondent did not regularly employ 15 persons and that therefore Respondent did not qualify as an "employer" under Chapter 760, Florida Statutes, a September 12, 2003, Order was entered scheduling a telephonic hearing for October 1, 2003, and permitting the filing of any documents in support of the parties' respective positions. Respondent's "Submission of Materials in Support of Dismissal of Petition and Supporting Memorandum of Law" was served by United States Mail on September 25, 2003. It contained a prayer for dismissal. Pursuant to Rule 28-106.204, Florida Administrative Code, Petitioner was entitled to respond in writing by October 6, 2003. Petitioner did not respond. Respondent's "Supplemental Motion to Dismiss for Lack of Jurisdiction" was served upon Petitioner by hand-delivery, by United States Mail, and by "e-mail" on September 26, 2003. Per Rule, Petitioner was entitled to file a written response by October 8, 2003. Petitioner did not respond. A Corrected Order entered September 26, 2003, permitted the parties until October 7, 2003, to submit any documents tending to support or refute jurisdiction by the Division of Administrative Hearings over this cause. This Order also rescheduled the telephonic hearing for October 9, 2003. Petitioner filed nothing in response to either the September 12, 2003, Order or the September 26, 2003, Corrected Order. At the October 9, 2003, telephonic conference call, Respondent appeared through counsel. The opening of hearing was delayed five minutes, but Petitioner did not appear. Thereafter, oral argument upon all Motions proceeded without Petitioner. Petitioner still had not called in to the meet-me telephone number after 15 minutes, and the telephonic hearing was concluded. In an abundance of caution, an Order to Show Cause was entered on October 10, 2003, giving Petitioner 10 days in which to show cause, in writing, filed with the Division, why this cause should not be dismissed for lack of jurisdiction. Petitioner has filed nothing. Therefore, Respondent's documentation, including but not limited to: Respondent's accountants’ affidavits and its payroll journals, unemployment tax returns, and a payroll schedule, may be presumed true and accurate. All the documentation supports a finding that Respondent never employed more than 14 people for any one week in the year 2001 and employed 15 or more employees for only one week (December 21-28, 2002) in the year 2002.
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 this cause for lack of jurisdiction. DONE AND ENTERED this 30th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 30th day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Truman Jeffery Mayfield 902 Phillips Street Jacksonville, Florida 32207 Robert G. Riegel, Jr., Esquire Ryan R. Fuller, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203
Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
The Issue The issue is whether Respondent engaged in an unlawful employment practice because of Petitioner's national origin.
Findings Of Fact It is not disputed that Mr. Arugu is a Nigerian resident in the United States, that he held the position of Treatment Counselor with the BSO, that he was discharged subsequent to being charged criminally of certain violent acts, or that BSO refused to rehire him after he was found not guilty of those charges. The BSO is an employer as that term is used in Subsection 760.02(7), Florida Statutes. Mr. Arugu was hired as a substance abuse treatment counselor by Broward County, Florida, for its drug court program, in November 1989. He worked as a mental health specialist for the Broward County Drug Court. The position, with Mr. Arugu as the incumbent, was transferred to the BSO on October 1, 1999. A mental health specialist provides guidance to individuals or groups of persons who abuse legal and illegal substances and provides, among other things, anger management advice. Mr. Arugu's supervisor was Kristina Gulick. Her title was Director of the Department of Community Control. She assumed this position in 2001. Her immediate supervisor is Colonel Wimberly and his immediate supervisor is Sheriff Ken Jenne. Mr. Arugu began working for Ms. Gulick in 2002. Teddy Meisel is the assistant director of the Department of Community Control and reports to Ms. Gulick. He has known Mr. Arugu since 1997. He learned that Mr. Arugu had been arrested sometime after June 20, 2003. Subsequent to October 24, 2003, he reviewed an investigation into the activities of Mr. Arugu and as a result, decided he should be terminated. Although Mr. Meisel was aware that Mr. Arugu was a Nigerian, that fact did not enter into his decision to recommend that he be terminated. He discussed his recommendation with Ms. Gulick, who agreed, and forwarded a recommendation of dismissal to Colonel Wimberly. Ultimately, Sheriff Jenne signed off on the dismissal. The investigation reviewed by Mr. Meisel, Ms. Gulick, and Colonel Wimberly was prepared by Sergeant Wilfred Medina of the BSO's Office of Professional Compliance. He opened the investigation on June 21, 2003, and completed it on October 24, 2003. Sergeant Medina interviewed Mr. Arugu on September 21, 2003, in connection with his arrest by the Plantation Police Department (PPD) on June 20, 2003. The PPD had charged him with two counts of battery on a law enforcement officer, resisting arrest with violence and resisting arrest without violence. A review of the probable cause affidavit prepared by the arresting officers revealed that two PPD officers responded to a domestic disturbance complaint made by Lauretta Arugu, the estranged wife of Mr. Arugu. When the officers arrived at Ms. Arugu's residence, Mr. Arugu struck them repeatedly. The officers used pepper spray to gain control of him and thereafter arrested him. Based on this information, Mr. Arugu was suspended from his employment without pay. He was ordered to report to the Office of Professional Compliance on June 23, 2003, so that he could meet with Lieutenant Arndt of that office, and with Sergeant Medina. During that meeting Mr. Arugu provided the officers with a hand-written letter that was completely different from the version of events provided by the arresting officers. Mr. Arugu asserted that the arresting officers brutalized him. On June 25, 2003, Sergeant Medina learned that Mr. Arugu had been arrested by the Sunrise Police Department (SPD) on September 14, 1997. A report prepared by SPD indicated that on that date two SPD officers observed Mr. Arugu selling shoes from the trunk of his automobile at the Sawgrass Mall. He was arrested for operating a business without a license. After being placed in a patrol car, he exited the vehicle and attacked two SPD officers. Although it is a violation of the Broward County Code of Ethics Manual to fail to report an arrest to one's supervisor, a policy about which Mr. Arugu was aware, he did not inform Mr. Meisel of his arrest by SPD. During the interview, Mr. Arugu did not inform Sergeant Medina of his arrest in 1997 by SPD for the offense of battery on a law enforcement officer. He stated that he had no criminal record and denied ever having been arrested prior to the June 20, 2003, arrest. Sergeant Medina concluded that Mr. Arugu was not a truthful person. During Sergeant Medina's interview, Mr. Arugu made no claim that he was the victim of prejudice based on his national origin or any other status. On July 11, 2003, pursuant to Ms. Arugu's petition, a permanent restraining order was served on Mr. Arugu. The restraining order forbade him from being in the presence of Ms. Arugu or contacting her. Mr. Arugu nevertheless called Ms. Arugu's home and left messages on her answering machine. This was reported to the judge, who issued the order. On October 14, 2003, the judge, who issued the order, found that Mr. Arugu had indeed violated the order and admonished him, but did not incarcerate him. In Mr. Arugu's Employment Complaint of Discrimination, Mr. Arugu specifically alleged that Roy Vrchota, Assistant Inspector General told him, while his criminal case was pending, that he would be reinstated if he was found not guilty at the end of the criminal case addressing the June 30, 2003, incident. Mr. Vrchota testified under oath that he never told Mr. Arugu that he would be reinstated. Upon consideration of all of the facts and circumstances of this case, it is found as a fact that Mr. Vrchota did not tell him that. Mr. Vrchota was the person who discovered the previous arrest by SPD. Mr. Vrchota does not believe that Mr. Arugu is a truthful person. Mr. Arugu never made any allegations to him with regard to being a victim of prejudice. He did not learn that Mr. Arugu was a Nigerian until he was deposed in this case. On September 12, 2003, Mr. Arugu was found not guilty of charges addressing the June 30, 2003, incident. On September 29, 2003, Mr. Arugu sent the BSO a letter asking to be reinstated. In a letter dated December 23, 2003, Mr. Arugu was informed that he was not going to be reinstated. The fact that Mr. Arugu was a Nigerian was not taken into consideration by those in the decision-making process. Mr. Arugu's conduct was contrary to BSO standards and that is why he was discharged.
Recommendation Based upon the 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. DONE AND ENTERED this 8th day of October, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 8th day of October, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Odiator Arugu, Esquire The Florida Law Firm, PLC 1990 West Fairbanks Avenue Winter Park, Florida 32789 Harry O. Boreth, Esquire Glasser, Boreth & Kleppin 8751 West Broward Boulevard, Suite 105 Plantation, Florida 33324 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Recommendation That the certificate of registration issued to respondent Robert T. Sharkey be suspended for a period of six months. DONE and ENTERED this 1st day of September, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 John A. Friedman, Esquire 634 N.E. Third Avenue Ft. Lauderdale, Florida 33304 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An agency of the state of Florida, Petitioner, PROGRESS DOCKET NO. 3196 BROWARD COUNTY vs. DOAH CASE NO. 77-854 ROBERT T. SHARKEY, Defendant. /
Recommendation In view of my finding that the Petitioner has engaged in a pattern of careless conduct, I recommend that the Board issue a written reprimand to her for having engaged in the conduct as found herein. in all other respects I recommend that the complaint be dismissed in its entirety. DONE and ORDERED this 29th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.
Findings Of Fact Petitioner issued Respondent license number 288-7 on February 15, 1988, for the operation of a child-care facility at 261-B S. Central Avenue in Oviedo, Florida. The license was amended on October 3, 1988. On November 15, 1988, Larry D. Lowe, a Human Services Program Analyst employed by Petitioner, conducted an inspection of the subject facility. At the conclusion of the inspection, he prepared a checklist noting deficiencies as to background screening. Specifically, Mr. Lowe noted that the fingerprint cards and abuse-registry forms had not been completed for an employee named Cindy Samons and that these omissions were in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code. Mr. Lowe gave Ms. Samons a copy of the checklist, which gave Respondent until November 22, 1988, to submit the required forms. Mr. Lowe returned to the subject facility on December 28, 1988, and discovered that the forms had been completed and placed in the employee's file, but they had never been submitted to Petitioner. Thus, Petitioner had never had the chance to conduct the necessary background screening on Ms. Samons, who was at the time the sole employee at the facility. Mr. Lowe recommended an administrative fine of $360 based upon a daily fine of $10 for the 36-day period between the initial corrective due date and the date of the follow-up inspection. On October 11, 1988, Ms. Marilyn Willming, R.N., who is a public health nurse with the Seminole County Public Health Unit, performed a medical inspection of the subject facility and discovered that, among other things, no employee on the premises had obtained a current first-aid certificate and that this omission was in violation of Rule 10M-12.004(1), Florida Administrative Code. Ms. Willming gave one of the employees a copy of the medical inspection checklist, which gave Respondent until October 25, 1988, to correct this problem. Flora Kavitch, R.N., who is also an employee of the Seminole County Public Health Unit, conducted a reinspection of the facility on December 23, 1988, and discovered, among other things, that the facility still had no employee with a current first-aid certificate. She recommended an administrative fine of $780 based upon a daily fine of $10 for the 78-day period between the date of the initial inspection and the date of the follow-up inspection. Each of the above-described deficiencies is a condition or occurrence related to the operation and maintenance of a facility and indirectly or potentially threatens the physical or emotional health, safety, or security of the children.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1140. ENTERED this 1st day of August, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 1st day of August, 1989. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 911 Orlando, Florida 32801 Hilton J. Soto 6501 Palmetto Drive Winter Park, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Hilton J. Soto Little Theresa Child Care 261-B South Central Avenue Oviedo, Florida 32765 =================================================================
