The Issue The issue in this case is whether Respondent, Phillip J. Aleong, D.V.M., violated Section 474.214(1)(f), Florida Statutes (2005), by failing to pay an administrative fine and investigative costs within 30 days from the date of the filing of Final Order BPR-2005-04911 with Petitioner's Clerk as alleged in an Administrative Complaint filed by Petitioner, the Department of Business and Professional Regulation, on June 26, 2006, in BPR Case Number 2005-066424; and, if so, what disciplinary action should be taken against his license to practice veterinary medicine in the State of Florida.
Findings Of Fact The following facts were stipulated to by the parties: Respondent is licensed in the State of Florida as a veterinarian, having been issued license number VM-6466. On September 1, 2005, Respondent appeared before the Florida Board of Veterinary Medicine to approve a Settlement Stipulation as to DOAH Case No. 05-1971PL. At the hearing, the terms of the Settlement Stipulation (herein after the "Stipulation") were placed on the record and the members of the Board voted to approve the settlement. On September 9, 2005, the Florida Board of Veterinary Medicine rendered the Final order Approving Settlement Stipulation Number BPR-2005-04911 (herein after the "Final Order") against Respondent's veterinary license, by filing the original Final Order with the Department's Agency Clerk. A copy of the Final Order was mailed to Respondent's Counsel. However, a copy was not sent or mailed directly to the Respondent. The Settlement Stipulation, as adopted by the Final Order, amongst other terms, required Respondent to pay an administrative fine in the amount of $5000.00 and investigative costs in the amount of $479.76 within thirty (30) days from the date of filing the Final Order with the Department's Agency Clerk. As the Final Order was filed with the Agency Clerk on Setpember [sic] 9, 2005, Respondent's compliance with the payment terms of the Final Order was required on or before October 9, 2005. Pursuant to the Final Order and the Stipulation Agreement incorporated therein by reference, Petitioner and Respondent agreed that Respondent's veterinarian license would be suspended for 90 days in the event that Respondent failed to comply with the terms of the Settlement Stipulation or the Final Order. Respondent was aware of this penalty provision at the time of signing the agreement, was present as the time of its adoption by the Florida Board of Veterinary Medicine, and was aware that the sums would be due 30 days after the Board signed the Final Order itself which was to occur sometime after the September 1, 2005 meeting. Respondent failed to remit payment of the administrative fine and cost required under the Final Order by October 9, 2005. On December 27, 2005, the DBPR mailed Respondent an investigatory complaint placing Respondent on notice that the fine had not been paid. The computer printout attached to the investigatory complaint, as well as the handwritten complaint generated by the Petitioner, both of which were included therein allege that Respondent had not paid the fine. Neither document asserts that the Respondent failed to remit the costs, however, a copy of the Stipulation and Order were included with the investigatory complaint. On January 12, 2006, after receipt of the investigatory [sic] complaint, Respondent paid the fine. Respondent paid the costs on May 8, 2006. On June 26 2006, after both the fine and costs were paid in full, Petitioner filed this proceeding alleging that the fine and costs had not been paid. Petitioner has stated that it has not located any cases in its records where a fine was imposed, then paid late, in which an administrative complaint was not filed. However, Petitioner is unable to offer testimony, with absolute certainty, that prior to the administrative complaint filed in this matter, that all other veterinarians have paid fines assessed in a final order by their due date. Petitioner has not found any evidence indicating that it has ever filed an administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. Petitioner has found no evidence contrary to or may otherwise reasonably dispute that the administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. The facts in Final Order BPR-95-05774 (Exhibit "B") and Final Order BPR-2003-02869 (Exhibit "C") are distinguishable from the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Veterinary Medicine finding that Phillip J. Aleong, D.V.M., has violated Section 474.214(1)(f), Florida Statutes, as described in this Recommended Order, and requiring that he pay an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of January, 2007. COPIES FURNISHED: Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bradford J. Beilly, Esquire Law Offices of Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Effective July 18, 1982, Respondent has effectuated its Corrective Action-Procedure Index and Corrective Action-Policy ("the policy") which, by its own terms, ". . . defines appropriate corrective actions for resolving performance problems and violations of rules of conduct." In the "Statements of Policy" section of the document, the policy is made to apply to all District employees and is intended to ". . . provide all employees with responsible and considerate supervision, and treat all employees in a fair and uniform manner." The policy also provides that ". . . [u]nsatisfactory performance or conduct shall be subject to the corrective actions outlined in the following procedures. " The policy categorizes unsatisfactory behavior into performance, personal and disciplinary problems, within each of which categories supervisory personnel are required to follow specific procedures. Although supervisors may discipline an employee to a lesser extent than that provided in the policy for a particular infraction, as indicated above, one of the specific stated purposes of the policy is to treat all of Respondent's employees in a fair and uniform manner. Disciplinary actions are divided into four categories according to the seriousness of the offense. Potential penalties range from verbal warnings for less serious offenses to discharge for more serious violations. The policy does provide, however, that even for the least serious category of offenses, a supervisor is required at a minimum to give a verbal warning and counselling for a first offense. Specifically, with respect to categories of offenses and penalties, the policy provides as follows: General Regulations: Categories are determined by the seriousness of the offense. Offenses in each category are assigned disciplinary points, which shall remain in effect for the time limits shown. Points and time limits are cumulative through all categories. A total of 100 points in effect may be cause for termination. Voided actions shall be removed from the unit personnel file after each annual merit review. Category 1 Offenses: (15 points remain in effect for three months with each action except verbal warning) Being more than 10 minutes late to work without notifying the appropriate super- visor, or division office. Failure to notify the appropriate super- visor or division office of absence, due to sickness, within 10 minutes from the start of the normal work day. Unauthorized absence from work or work station. Failure to report any injury or accident to immediate supervisor. Transporting unauthorized persons in District vehicles. Interfering with the work activities of other employees. Maximum Penalties: First offense Verbal warning Second or third offense Written warning Fourth offense 1 day suspension Fifth offense 2 day suspension Sixth offense 3 day suspension Seventh offense 5 day suspension Eighth offense Discharge Category 2 Offenses: (25 points remain in effect for six months with each action) Failure to follow approved safety procedures in accordance with the District Accident Prevention Manual. Abuse of District property or equipment. Unauthorized use of District property or equipment. Operating a District vehicle or equipment in an unsafe manner. Failure to follow unauthorized instructions. Failure by a supervisor to make a written report of any employee accident involving injury or property damage, which has been properly reported. Possession or display of an unauthorized weapon while performing official District duties. Use of abusive language to a co-worker. Maximum Penalties: First offense Written warning Second Offense 3 day suspension Third offense 5 day suspension Fourth offense Discharge Category 3 Offenses: (50 points remain in effect for one year with each action) Use of abusive or threatening language to the public, or use of threatening lan- guage to a co-worker. Failure to perform an assigned duty. Carelessness or negligence in the per- formance of duty resulting in serious injury or property damage. Maximum Penalties: First offense 5 day suspension Second offense Discharge Category 4 Offenses: (100 points and immediate discharge pending investigation) Theft Refusing to perform assigned duties. Assault upon co-workers or the public. Possession of or consuming alcoholic beverages, non-prescribed narcotics or controlled substances during working hours. Intentionally falsifying any District record or destroying any record in violation of state law. Maximum Penalty: First Offense Discharge By Memorandum dated March 19, 1982, Petitioner was advised by Respondent that he was assigned 25 disciplinary points for failure to follow authorized instructions, a Category 2e offense under Respondent's above-stated policy. By Memorandum dated July 30, 1982, Petitioner, who had worked for Respondent for eight years, was terminated from his employment because he had accumulated an additional 100 disciplinary points, 25 more than that required for termination under Respondent's policy. Specifically, Petitioner was assessed the additional 100 disciplinary points as follows: 25 points for failure to follow authorized instructions by not filing a grievance, a Category 2e offense; 25 points for the use of abusive language to a co-worker, a Category 2h offense; and 50 points for use of abusive or threatening language to a member of the public, a Category 3a offense. In his eight-year tenure as an employee of the Respondent, Petitioner had never been disciplined prior to the memoranda of March 19, 1982, and July 30, 1982. It is undisputed that Respondent has not complied with the formal rulemaking requirements of Section 120.54, Florida Statutes, in adopting the challenged policy.
The Issue Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, 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 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue Whether the Respondent, Michael D. Ely, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating and licensing law enforcement officers pursuant to Florida law. As such, the Petitioner has jurisdiction over disciplinary actions against law enforcement officers. At all times material to the allegations of this case, the Respondent was a certified law enforcement officer holding certificate number 1119822. At all times material to the allegations of this case, the Respondent was employed by the Escambia County Sheriff's Office and worked as a deputy sheriff assigned to road patrol for a designated geographic area within the county. At all times material to the allegations of this case, the Respondent was romantically involved with or was residing with an individual identified in this record as Greta Fernandez or Greta Brown. By his admission, the Respondent's relationship with Ms. Brown began around the first of August 2002. The Respondent met Ms. Brown while he was working an off duty job at Pensacola Beach. His romantic interest in her began in earnest a short while later after he bumped into her at a club known as "Coconuts." Shortly after beginning his association with Ms. Brown, the Respondent was verbally counseled by his superior officer regarding his choice of friends. Officers are warned not to socialize with and associate themselves with undesirable persons. Concerns over the Respondent's association with Ms. Brown continued and eventually led to a written report (Petitioner's Exhibit 3) issued on September 21, 2002. According to the Respondent, an individual named Patty Clark verbally teased and tormented Ms. Brown's minor child as the student left the school bus en route home. While the child did not testify in this cause it is presumed for purposes of this record that the extent of the "teasing" included verbal comments and a hand gesture commonly referred to as "the finger." It was alleged that the child was very upset by the incident. At Ms. Brown's urging, on or about September 21, 2002, the Respondent contacted Ms. Clark by telephone and identified himself as a deputy sheriff. He further admonished Ms. Clark to cease her behavior regarding the minor child and issued a veiled comment regarding the status of Ms. Clark's driving privileges (suspended). The Respondent did not write up the incident, did not refer the matter to other law enforcement who might have jurisdiction over the matter (e.g. the Pensacola police department), or take any official action against Ms. Clark. Other than the telephone call that was intended to curb Ms. Clark's actions toward the child, the Respondent took no other official action against the alleged perpetrator. Because she did not appreciate the manner in which she had been contacted, Ms. Clark filed a complaint against the Respondent with the Sheriff's Office. That complaint led to the written counseling report noted in paragraph 6. It is not alleged that Ms. Clark's actions or comments to the minor child constituted any criminal behavior. Moreover, other than to pacify Ms. Brown and presumably her child, it is unknown why the Respondent would have used his official position as a deputy sheriff to pursue the matter. If Ms. Clark committed a crime or an actionable infraction, the Respondent's wiser course would have been to refer the matter/incident to an appropriate law enforcement authority. As it happened, the Respondent attempted to use his official position of authority to secure a benefit for himself, his girlfriend and/or her child, that is, to coerce the alleged perpetrator (Ms. Clark) and to thereby keep her from interacting with the minor again. Despite the counseling on September 21, 2002, and in contrast to his testimony in this cause on October 15, 2003 (that his relationship with Ms. Brown ended "like the second week of September of 2002"), the Respondent's relationship with Ms. Brown did not end in September 2002. The weight of the credible evidence supports the finding that the Respondent continued seeing Ms. Brown after the second week of September 2002 and knew or should have known that she associated with persons whose reputations were less than stellar. In fact, the Respondent admitted that he utilized resources available to him through the Sheriff's Office to run background checks on at least two of Ms. Brown's friends because he thought they were "no good." More telling, however, is the fact that the Respondent admitted receiving and delivering to Ms. Brown what he believed were narcotic pills (from Dan Faircloth). The Respondent admitted that Ms. Brown did not go to physicians or doctors on a regular basis for treatment. He also knew that Mr. Faircloth was neither a doctor nor a pharmacist. Finally, the Respondent knew that Ms. Brown continued to receive and take pills for her alleged pain. How the Respondent could have imagined it appropriate for Mr. Faircloth to supply drugs to Ms. Brown is not explained in this record. Whether or not the pills actually were a controlled substance is unknown. It is certain the Respondent believed them to be. Eventually, the Respondent admitted to his superior that he found a crack pipe in his apartment (presumably owned by Ms. Brown). When the incident of the pipe came out, the Respondent was again instructed to break off his relationship with Ms. Brown. As late as November 2002 the Respondent continued to be in contact with Ms. Brown. The Sheriff's Office was by that time so concerned regarding the Respondent's poor judgment in his selection of associates that Lt. Spears felt compelled to write a memorandum to her superior regarding various allegations. One of the incidents that triggered an internal affairs investigation was the Respondent's disclosure to Ms. Brown that the Sheriff's Office was looking for one of her former friends. Ms. Brown tipped the person (for whom an arrest warrant had been issued) off that deputies were looking for her. Based upon the warning of her impending arrest, the suspect fled the jurisdiction. Ultimately, the suspect's arrest was delayed due to the Respondent's disclosure of the warrant information to Ms. Brown. At some point a reasonable person, and certainly a trained law enforcement officer, should have known that Ms. Brown and her associates were not appropriate persons with whom to socialize. In fact, when the Respondent elected to run a background check on Ms. Brown (presumably to check the status of her driving privileges) because he did not want her to drive his vehicle without a valid license, he should have questioned whether or not he should associate with someone he might not be able to trust. When two of her friends were arrested as a result of his checks on them, he should have clearly known to disassociate from Ms. Brown. That he remained in the relationship for as long as he did is incomprehensible. The Respondent offered no rational explanation for his behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding the Respondent failed to maintain good moral character as required by law and that the Respondent's certification be revoked based upon the severity of the conduct, the number of violations established by this record, and the lack of mitigating circumstances to support a lesser penalty. S DONE AND ENTERED this 6th day of January, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-9675 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2004. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Roy M. Kinsey, Jr., Esquire Kinsey, Troxel, Johnson & Walborsky, P.A. 438 East Government Street Pensacola, Florida 32502
The Issue Whether Petitioner violated Rules and Regulations of the Pinellas County Sheriff’s Office, 3-1.1(002), 3-1.3(066), and 3-1.3(067), and, if so, whether Petitioner should be terminated from his position with the Pinellas County Sheriff’s Office.
Findings Of Fact Based on a review of the case file, the Transcript of the final hearing, and the exhibits entered into evidence, the following Findings of Fact are found. On July 13, 2001, Dominguez was assigned to foot patrol at the K-Mart store in South Pasadena, Florida, as a community police officer. At that time he had been employed by the Pinellas County Sheriff’s Office for approximately sixteen and one-half years. On the evening of July 13, 2001, Dominguez was standing outside K-Mart talking to an employee of K-Mart, Renee Herrington (Herrington). While talking to Herrington, Dominguez observed a white van and a black sport utility vehicle (SUV) parked in front of K-Mart next to a yellow curb. The area in which the vehicles were parked was marked by a faded “no Dominguez observed the vehicles for a time and when no one moved the vehicles, he decided to cite both vehicles for parking violations. He issued a citation to the white van and then proceeded to the black SUV. The SUV had been parked in front of K-Mart by Maryellen Ruvolo (Ruvolo) while she and her niece went into K-Mart to make a purchase. Ruvolo left the vehicle running, and her sister and two nephews remained in the vehicle. Dominguez went to the rear of the SUV and began writing the ticket. Ruvolo’s sister, Eugenia Quinn (Quinn), got out of the SUV and asked Dominguez to not issue the ticket and allow her to move the vehicle. Dominguez refused her requests and gave the ticket to Quinn. Dominguez started walking in the direction of Herrington, who was sitting on a bench approximately 30 yards away from the vehicles. When Ruvolo returned to the vehicle, Quinn gave her the ticket and told her that Dominguez would not let her move the SUV. Ruvolo turned in the direction of Dominguez and shouted, “Have a nice day, you fucking fat bastard.” Dominguez turned around and went back to where Ruvolo was standing. He wanted to confront her about her comment. Ruvulo started to yell after Dominguez went up to her. He arrested her, handcuffed her, and put her in his patrol car. The charge was disorderly conduct. During the confrontation between Dominguez and Ruvolo, none of the members of the public became involved in the dispute and Ruvolo did not incite any members of the public to participate in the dispute. She never physically or verbally threatened Dominguez. Ruvolo’s actions did not invade the right of others to pursue their lawful activities. Herrington went back inside K-Mart and other members of the public were not disrupted in their entering and leaving K-Mart. Quinn asked Dominquez why he was arresting her sister and he told her that he did not get paid enough to put up with what Ruvolo had said. While he was arresting Ruvolo, Dominguez had requested assistance from another deputy sheriff, Kelvin Franklin. When Deputy Franklin arrived on the scene the confrontation was over. Dominguez asked Franklin to go inside K-Mart and get the address of Herrington, who had witnessed the incident. Dominguez did not request Franklin to take a statement from Herrington. On the way to the jail, Ruvolo apologized to Dominguez, and he told her to shut up. Prior to reaching the jail, Ruvolo stopped for a few minutes in a parking lot and met with his supervisor to get some in-service papers. When they reached the jail, Dominguez was advised that there were six persons to be processed ahead of Ruvolo. Dominguez got out of the patrol car and turned off the ignition. He did some paperwork on the trunk of his patrol car while waiting. He left Ruvolo in the patrol car without air conditioning and the windows rolled up for approximately six or seven minutes. He returned to the vehicle and turned on the ignition and waited to be called to take Ruvolo inside the jailhouse. They waited approximately 20 minutes from the time they got to the jail until they entered it. Ruvolo spent approximately five hours in jail and was required to post bail before she could be released. After arresting Ruvolo, Dominguez prepared his incident/offense report and complaint/arrest affidavit. Dominguez admitted during his testimony that neither the arrest report nor the arrest affidavit set forth facts to establish the elements for the offense of disorderly conduct, the crime for which he arrested Ruvolo. Dominguez told the Administrative Review Board (ARB) that he felt that Herrington’s peace had been disturbed. Dominguez did not talk with Herrington between the time he heard Ruvolo make her remarks to him and the time he arrested Ruvolo. When asked why he had not included any statements from Herrington in his report, he replied, “Laziness.” During the ARB hearing, Dominguez stated that he had no excuse for not completing a thorough report and detailing the elements of the crime. He acknowledged the position that he placed the Sheriff's Office in when he did not do a complete and thorough report. Ruvolo and Quinn made complaints to the Pinellas County Sheriff’s Office about Dominguez’s actions. The complaints alleged that Dominguez was rude, intimidating, and unprofessional in his behavior during the July 13, 2001, incident. Ruvolo also alleged her arrest to be false. As a result of the complaints, Sergeant Tim Pelella (Pelella) of the Administrative Investigations Division of the Pinellas County Sheriff’s Office conducted preliminary interviews of Ruvolo and Quinn. During the course of the interview, Ruvolo recognized that she would have to pursue her false arrest claim through the courts. Pellella referred the matter to the commander of the road patrol division for investigation of the non-arrest components of the complaints. The complaints were referred to Sergeant Jay Morey (Morey), Dominguez’s immediate supervisor. Sergeant Morey talked to Dominguez and Herrington, but did not talk to either Ruvolo or Quinn. Morey concluded that he would not sustain the complaint, but his conclusion was never finalized or reduced to writing. The arrest for disorderly conduct was referred to the State Attorney’s Office for prosecution. The arrest report and arrest affidavit were reviewed by Assistant State Attorney Lydia Wardell, who concluded that neither the report nor the affidavit set forth sufficient facts to prosecute the case. As a result, a No Information was filed by the State Attorney’s Office disposing of the charges against Ruvolo, stating: “The facts and circumstances revealed do not warrant prosecution at this time.” As a result of the decision not to prosecute, the Administrative Investigation Division of the Sheriff’s Office retrieved the complaints from Morey and began its investigation of the false arrest complaint. It is the policy of the Sheriff’s Office not to investigate allegations of false arrest until such time as the State Attorney’s Office makes a decision on whether to prosecute. Dominguez was notified that an investigation was being initiated. Dominguez gave a sworn statement to the investigators assigned to the case. Ruvolo and other witnesses also gave sworn statements. After the investigation was completed, Dominguez was given an ARB hearing. In accord with General Order 10-2 of the Sheriff’s Office, at least one member of Dominguez’s chain of command sat on his ARB hearing. Prior to the hearing, the ARB members are given a copy of the investigation conducted by the Administrative Investigation Division. At the hearing Dominguez was permitted to offer a statement, to respond to questions, and to present additional evidence. The ARB made the following determination: On July 13, 2001, Manuel Dominguez, #52303, while on duty in Pinellas County, Florida; did violate the Pinellas County Sheriff's Civil Service Act Laws of Florida, 89-404 as amended by Laws of Florida 90-395, Section 6, Subsection 4, by violations of the provisions of law or the rules, regulations and operating procedures of the Office of the Sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.1 (Level Five Violation), 002, relating to Loyalty, to wit: Members shall maintain their loyalty to the Sheriff's Office and it's [sic] members as is consistent with law and professional ethics as established in General Order 3-2. Synopsis: On July 13, 2001, you failed to abide by the PCSO Code of Ethics, to wit: You acted officiously or permitted personal feelings, prejudices, animosities or friendships to influence your decisions while in the performance of duty as a deputy sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 066, relating to Performance of Duty, to wit: All members will be efficient in their assigned duties. Synopsis: On July 13, 2001, you failed to accurately document an incident that resulted in the arrest of a citizen of this county. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 067, relating to Performance of Duty, to wit: All members will be effective in their assigned duties. Synopsis: On July 13, 2001, you effected an arrest which the State Attorney's Office could not prosecute because you were ineffective in your assigned duties. The violations resulted in a cumulative point total of 75 points. A Level Five violation is given a point value of 50 points. A Level Three violation is given a point value of 15 points. The ARB assigned a total of 25 points for the two Level Three violations and 50 points for the Level 5 violation. There were no previous discipline points added. The discipline range for 75 points is from a ten-day suspension to termination. The ARB recommended the maximum penalty of termination. General Order 10-2 of the Pinellas County Sheriff’s Office deals with disciplinary procedures. It provides that the termination procedure to be followed is the same as that of a member who is suspended without pay with certain additional procedures. Only the sheriff has the authority to terminate a member of the Sheriff’s Office. A member can only be terminated “subsequent to an Administrative Investigation Division investigation supported by findings and disciplinary action recommended by a Administrative Review Board, and at the instruction of the Sheriff” that the member be terminated. At the time that the ARB made its recommendation that Dominguez be terminated, Rice, the Pinellas County Sheriff, was out of the state. He had discussed Dominguez’s disciplinary case with Chief Deputy Coats (Coats) prior to leaving the state. Rice had specifically authorized Coats to impose discipline, including termination, upon Dominguez that was consistent with the ARB’s recommendations. Coats advised Rice of the findings and recommendations of the ARB. Rice told Coats that he had no problem with terminating Dominguez. Coats signed the inter- office memoranda for Rice, advising Dominquez of the findings and recommendations of the ARB and advising of the decision to terminate Dominguez from employment with the Sheriff's Office. Coats was instructed by Rice to terminate Dominguez. In his deposition, Rice stated that Dominguez should have been terminated and that it was his decision to approve Dominguez's termination. Dominguez did not know the elements of the offense of disorderly conduct when he arrested Ruvolo. He felt that he could arrest her for her inappropriate comments to him. At the final hearing, Dominguez admitted that based on his long career in law enforcement that he should have known what constituted disorderly conduct. Dominguez was insulted by Ruvolo's name-calling and felt that her words were a challenge to the uniform of a deputy sheriff. Dominguez allowed his personal feelings to influence his decision to arrest Ruvolo.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a Final Order finding Manuel R. Dominguez guilty of violating the Rules and Regulations of the Pinellas County Sheriff's Office as set forth in September 27, 2001, inter-office memorandum and upholding the termination of Manuel R. Dominguez from his employment as a deputy sheriff with the Pinellas County Sheriff's Office. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. _ SUSAN B. KIRKLAND 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 April, 2002. COPIES FURNISHED: William M. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North Suite 115 Clearwater, Florida 33762 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
Findings Of Fact Petitioner is a Florida corporation with its business located in Tampa, Florida. Respondent is a stated agency charged with responsibility for investigating and resolving unlawful employment practices. Its duties and powers are enumerated in Chapter 23, Florida Statutes, the Human Rights Act of 1977. 2. Respondent has adopted Rules 9D-8.06, 8.22(2), 9.03(4), and 9.03(7), Florida Administrative Code. These rules authorize Respondent to issue subpoenas, serve them by registered mail, and enforce them through judicial proceedings. The rules specifically authorize issuance, service, and enforcement of subpoenas in connection with investigations of unfair employment practices. They provide that inferences may be drawn from the failure of a person to provide requested information. . . Linda Parties filed a complaint against Petitioner with the Respondent, alleging sex discrimination by Petitioner. Based upon the complaint, Respondent initiated an investigation. It formally requested information from Petitioner on July 13, 1979. On April 7, 1981, Respondent issued a subpoena in connection with the investigation and served it by registered mail in accordance with its rules. Petitioner objected to the subpoena and has not provided the requested information. Respondent has sought to enforce the subpoena through a "Petition for Enforcement" filed in Circuit Court in Leon County, Florida. Circuit Judge Donald O. Hartwell has entered an Order which provides: This cause came to be heard on the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena filed by the Human Development Center, Respondent. Both parties were represented by Counsel who presented argument to the court. The court being otherwise fully advised enters this its order; therefor it is, Ordered that the service of an investigatory subpoena served by certified mail pursuant to Rule 9D-8.22, Florida Administrative Code is valid service. Such service is not required to be served in accordance with Florida Statutes 48.031 or Rule 1.410(c), Florida Rules of Civil Procedure. It is further, Ordered that the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena is denied. It is further, Ordered that further proceedings to enforce the investigatory subpoena in this cause are stayed pending the ruling of Hearing Officer G. Steven Pfeiffer in Case No. 81-2101RX now set for hearing on October 21, 1981. Respondent has made no determination of reasonable cause to believe that Petitioner has engaged in any unlawful employment practice.
Findings Of Fact Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the 70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated: 7-2-77 Case number 77-2789 Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond. 3-26-70 Case number 701455 Assault and battery, case discharged 4-7-70 Case number 70 1454 Malicious Mischief, sugar in gas tank of Gail Shipp. K.M.'s report stated: 4-30-76 Case number 21013 possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine 7-31-78 Case number 3105 Sale of controlled substance, 80 days Duval County jail, 1 year Probation. There were other charges which were later shown as misdemeanor's. (sic.) On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no." After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142) "He said, Well what are you talking about specifically?' And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee. He said, 'Well, what specifically are you talking about?' And I said, 'Well,' I said, 'You currently are on probation?' He said, 'Yes, sir.' And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did. And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee, K. M.'s report was the equivalent of Mr. Shipp's. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)." With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the petition for relief filed by Danny Michael Shipp and supported by the Commission. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
