The Issue This is an examination challenge proceeding in which the Petitioner contends that he should be given additional credit for his answers to two challenged questions from Section 5 of the April 25, 1995, Law Enforcement Officer Basic Recruit Training Examination.
Findings Of Fact Background matters The Respondent agencies are agencies of the State of Florida and are charged by statute with responsibility for the testing and certification of law enforcement officers in Florida. Petitioner seeks to become a Florida certified law enforcement officer. To that end, on April 25, 1995, he sat for Section 5 of the certification examination. In order to receive a passing grade on Section 5 of the examination, the Petitioner must answer 80 percent of the questions correctly. The Petitioner was originally given a grade of 75 percent on the April 25, 1995, examination. The examination was then manually graded and the Petitioner was awarded a raw score of 46 points which equates to a percentage score of 77 percent correct. At the commencement of the hearing the Respondents stipulated that the Petitioner should be given credit for his answer to question 38. That stipulation had the effect of increasing the Petitioner's raw score to 47 and increasing his percentage of correct answers to 78.3 percent. The Petitioner needs a raw score of at least 48 in order to have answered 80 percent of the questions correctly. Multiple choice questions on a certification examination should have only one correct answer choice. If more than one of the answer choices is arguably valid it is the policy of the Criminal Justice Standards and Training Commission to give candidates the benefit of the doubt and give them credit for an arguably correct answer other than the "keyed" correct answer. Question Number 30 Question number 30 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-704(A1), the topic of which is "Use of Force Matrix/Levels of Resistance Matrix." Question number 30 is a multiple choice question, the answer to which involves identification of the appropriate initial officer response level to a situation described in the question. 5/ The situation described in question number 30 involves conduct by the subjects described in the question that could be interpreted as at least level 5 resistance on the Level of Resistance Matrix. When faced with that level of resistance, the Use of Force Matrix authorizes a broad range of officer responses from as little as "arrival" or "officer presence" to as much as "incapacitation," with nine or ten authorized intermediate responselevels in between. Judging from the "keyed" correct answer, question number 30 was apparently intended to test the candidates' knowledge of the first response level itemized on the Use of Force/Levels of Resistance Matrix. However, the question is worded in such a way that it appears to be asking what the candidate would do first if he or she responded to the situation described in the question. In view of the definitions in Law Enforcement Objective CJD-704(A1) of the terms "Presence" and "Dialogue" under the caption "OFFICER RESPONSE LEVELS," the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 6/ Question number 30 is also ambiguous because of all of the potential variables that might be present in a situation such as that described in the question, which variables could change the nature of the most appropriate response. By reason of this ambiguity in the subject question, the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. Question Number 54 Question number 54 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-723(F1), the topic of which is "Vehicle Pullovers." Question number 54 is a multiple choice question, the answer to which involves identification of the first thing an officer should do in the situation described in the question. 7/ Question number 54 is ambiguous and misleading when the question is considered in light of the language of the relevant portions of Law Enforcement Objective CJD-723(F1), which read as follows: OBJECTIVES: The student will: * * * Describe the proper positioning of the patrol vehicle, to include: approximately 15 feet behind the vehicle approximately 3 feet to the left turn the radio up leave flashing lights on during the entire stop. Recall that an officer should constantly observe the vehicle and occupants. Identify the procedures to be followed while approaching the vehicle on foot, to include: be aware of traffic conditions observe the driver and passengers by looking in the side or rear windows check the trunk to be sure it is closed. approach slowly and carefully from the left front door of the patrol vehicle to just behind the left front door of the violator's vehicle when only the front seat is occupied minimize exposure by standing just to the rear of the violator's vehicle, if rear seat occupied visually check persons and passenger's compart- ment for weapons carry flashlight, if needed, leaving strong hand free for possible weapon use Recall that it is important to have the driver turn off the engine [immediately] after stopping. Identify steps to follow during the initial violator contact, to include: greet the offender with courtesy obtain the driver's license and registration [immediately] to gain control briefly state reasons for stop do not accept a purse or wallet with a license inside; ask the offender to remove it do not argue with the offender; thoroughly explain the reason for the stop. [Emphasis added.] The language from CJD-723(F1) quoted above does not purport to prioritize the actions it describes, nor does it clearly state which of the many actions described in that language should be taken first. Several of the actions described above could be reasonably identified as the first action a police officer should take under the circumstances described in question number The answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 8/
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner is entitled to credit for his answers to questions 30 and 54 and adjusting his examination score accordingly. DONE AND ENTERED this 24th day of January, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 24th day of January 1996.
The Issue This case involves the issue of whether the Respondent demonstrated lack of good moral character and made a false representation on an application for employment with the City of Tampa Police Department when he failed to disclose several prior places of employment. By an amended notice of hearing, dated September 15, 1983, Respondent was given due notice of the formal hearing held on October 28, 1983. By a pleading addressed to the undersigned Hearing Officer and dated October 22, 1983, the Respondent acknowledged receipt of the notice of hearing and stated that he would not be attending the hearing. Respondent stated no proper grounds for the granting of a continuance and no continuance was requested in accordance with the Model Rules of Procedure. At the formal hearing, the Petitioner called as witnesses Carl A. Kaluhiokalani, R. S. Noblitt, Kenneth H. Taylor, Oscar Crosby, Curtis Lane, Elmer Barry, Sue Campbell. The Petitioner offered and had admitted into evidence four exhibits. The Respondent did not appear and did not present evidence on his behalf.
Findings Of Fact At all times material to these proceedings, Respondent has held law enforcement officer certificate No. 02-026704. This certificate has been in an inactive status since May 14, 1981. On June 11, 1980, the Respondent applied for employment with the Tampa Police Department. On September 15, 1980, the Respondent became employed by the Tampa Police Department. On May 14, 1981, The Respondent was terminated for failure to disclose material information on his employment application. The Respondent had previously worked at the Central Garage, City of Tampa, for a short period of time in 1973. He was terminated because of being lazy and uncooperative and because he was found sleeping in the back of a police car while on duty. This employment was not disclosed on his June 11, 1980, application to the Tampa Police Department. In 1974, the Respondent had first applied for employment with the Tampa Police Department and was not hired because of information that he had previously been terminated from another city department because of being lazy and uncooperative. The Respondent was employed by Barry Investigations in April 1979, and was employed by J. C. Penney from September 12, 1978, through January 28, 1979. Neither of these employers was disclosed on the employment application of June 11, 1980. The application form requests the applicant's entire employment record. The application form asks for the applicant's employment record without limitation as to the time period covered. The form states that the applicant is to "REQUEST ADDITIONAL SHEETS IF NEEDED," to list more than the five employers for which space is provided on the standard form.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED: That a final order be entered finding the Respondent guilty of a violation of Section 943.145(3)(b), Florida Statutes and suspending his law enforcement officer certificate for a period of two years. DONE AND ORDERED this 5 day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June 1984. COPIES FURNISHED: Susan Tully, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Franklin P. Taylor Robert R. Dempsey, Executive Director P.O. Box 2136 Department of Law Enforcement Lutz, Florida 33549 Post Office Box 1489 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement Post office Box 1489 Tallahassee, Florida 32302 Daryl G. McLaughlin, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Petitioner should receive credit for any or all of the four challenged questions from the State Officers Certification Examination (“SOCE” or “Exam”).
Findings Of Fact Petitioner attended law enforcement proficiency training and was provided with 76 hours of instruction. Petitioner was instructed from the 2018 versions of the law enforcement and high liability textbooks. Respondent utilized experienced field training officers, curriculum development staff, and advisory teams to develop curriculum and corresponding examination questions for the SOCE. The questions are evaluated and validated through a process that includes internal and external review for content and accuracy and are field tested as non-graded questions a minimum of 100 times in actual exams for further validation and statistical data collection prior to use on graded exams. When examinees sit for the SOCE, they are informed prior to beginning the Exam that the questions and answers are derived solely from the curriculum and that there is only one correct answer for each question. Petitioner took and failed the Exam three times: on April 4, 2019; April 17, 2019; and July 25, 2019. Petitioner obtained a raw score of 149 correct answers out of a total of 190 graded questions on his third and final attempt on July 25, 2019. A passing score for the Exam is 80 percent, which requires a minimum of 152 correct answers. In order to pass the Exam, Petitioner would need credit for at least three more questions added to his score. Petitioner challenged a total of four multiple-choice questions. Respondent provides each examinee who fails to achieve a passing score the opportunity to review and challenge any question for which he or she did not receive credit. Exam questions challenged by examinees are reviewed by subject-matter experts from advisory teams, and credit is awarded when warranted. The review process strictly addresses the accuracy of the examination questions as they relate to the training curriculum. If credit is awarded, thereby invalidating a challenged exam question, that question is removed from use in all future exams. Each of the four exam questions at issue was challenged by Petitioner and reviewed by Respondent. Following the review process for each of the four challenged questions, no additional credit was awarded. Respondent upheld the validity and accuracy of each of the four questions and answers as originally scored in accordance with the exam key as having no other possible correct answers based on the curriculum. With respect to Question One: Methamphetamine Laboratory, examinees were asked to select which of four statements about such laboratories is accurate. Petitioner chose answer A. for Question One, based on his reasoning that it stated that methamphetamine labs produce an odor similar to bleach and that the training materials mention bleach in the relevant section. Petitioner’s selection of answer A. is based on a misreading of the training materials. The clear language of Question One dictates a single correct answer, which is directly based on the training curriculum. The curriculum describes a range of sizes for how small or large a methamphetamine lab may be, which is reflected verbatim in answer B. The correct answer to Question One is B., consistent with Respondent’s answer key. With respect to Question Two: Battery by a First Responder, examinees were asked to determine what crime an officer could be charged with based on a hypothetical wherein the officer provided first aid to a person without consent. Petitioner chose answer D., stating that the question was open to interpretation because it did not state whether the officer actually touched the person in the hypothetical. Petitioner’s answer was based on the assumption of elements of a negligence claim that were not presented in the question. The clear language of Question Two dictates a single correct answer, which is directly based on the training curriculum. The curriculum states that first responders may be charged with battery for rendering emergency care without the patient’s consent, which is accurate to the hypothetical described in Question Two and reflected in Answer A. The correct answer to Question Two is A., consistent with Respondent’s answer key. With respect to Question Three: First Aid, examinees were asked to select which step a first-aid provider should take first when trying to stop a specified type of bleeding. Petitioner chose answer B., which Petitioner stated was described in the curriculum as a step to be used to control bleeding. Although the step Petitioner chose was described as a step to be used to control bleeding in the curriculum, it was not listed as the first step. The clear language of Question Three dictates a single correct answer, which is directly based on the training curriculum. The curriculum lists, in order, what steps a first-aid provider should take to control bleeding. The first step listed in the curriculum is reflected in answer D. The correct answer to Question Three is D., consistent with Respondent’s answer key. With respect to Question Four: Sexual Harassment, examinees were presented with a hypothetical exchange between two officers and then prompted to select which type of sexual harassment was demonstrated in the hypothetical. Petitioner chose answer D., based on his opinion that the question was poorly worded, leaving the answer open for interpretation. Petitioner did not cite to any portion of the training curriculum as a basis for his selection of answer D. The clear language of Question Four dictates a single correct answer, which is directly based on the training curriculum. The curriculum specifically states that a conversation of the type described in Question Four’s hypothetical is verbal sexual harassment, as reflected in answer A. The correct answer to Question Four is A., consistent with Respondent’s answer key.
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 rejecting Petitioner’s challenge to the failing score he received on the July 25, 2019, SOCE. DONE AND ENTERED this 23rd day of March, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 23rd day of March, 2020. COPIES FURNISHED: Lester Blount 6025 Wedgewood Village Circle Lake Worth, Florida 33463 (eServed) Christopher David Bufano, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Whether the Respondent unlawfully used excessive force in an arrest on or about March 17, 1990. Whether Respondent knowingly made false statements regarding the incident to investigating authorities with the intent to mislead them regarding his knowledge and involvement in the incident. Whether sanctions should be imposed against Respondent's law enforcement officer certificate for failure to maintain good moral character, as required by law.
Findings Of Fact Respondent Gonzalez was issued Training Certificate No. 35-89-002-01 from the Commission on May 19, 1989. Respondent received his appointment as a patrolman with the City of Tampa Police Department on May 26, 1989. At all times material to these proceedings, he was twenty-two years old and was still in his first year of training. In the early morning hours of March 17, 1990, Respondent and his partner heard an excited radio communication that indicated an officer was hurt in an adjacent territory and that assistance was needed. After responding to the call, these two patrolmen were assigned to crowd control. While he was on foot patrol near the area where an arrest was taking place, Respondent observed a large, extremely strong-looking man engaged in rough horseplay with a woman. When Respondent told them to leave the area, they moved down to the very next corner. This man was later identified as Thomas Copeland. At this new location, Mr. Copeland and the woman continued to engage in their horseplay. They were very loud and the man appeared to be intoxicated. When Respondent's partner observed their disorderly conduct at 3:00 a.m. in the midst of a crime scene that appeared to be volatile, he approached Respondent and told him they were going to have to arrest the man. As these officers approached Mr. Copeland from a block away, they saw him toss the woman upon the trunk of an unmarked police car parked at that site. While running towards him, Respondent's partner advised Mr. Copeland to place his hands behind his back. Instead, Mr. Copeland protested and tried to explain he was not doing anything wrong. Once they reached Mr. Copeland, Respondent's partner attempted to swing him around by one arm in order to get handcuffs on him. The Respondent, who had never been involved in an arrest during a lot of street action before, reached for the other arm. As he was doing this, the man's fist accidentally hit Respondent's face because he was being pulled in the opposite direction. The Respondent misinterpreted what happened as a battery upon him. After Respondent had his hands on Mr. Copeland's arm, he was unable to bend it behind the man's back to complete the handcuffing process. This was due to the man's size and strength, which was used to resist the Respondent's attempt to move the arm. Respondent struck the man's right arm three times with his flashlight in an attempt to gain compliance with his handcuffing maneuver. This level of force was used because the man was much larger than the two officers and was more in control at this point of the arrest process. By this time, a crowd was beginning to gather. Protests were being made about the police action taken against Mr. Copeland. The level of force used by Respondent under the circumstances was proper according to the training he had received in the Tampa Police Academy. He believed Mr. Copeland had resisted arrest with violence and he used the force he believed was necessary to effectuate the arrest. While Respondent was concentrating on his attempt to gain control of the man's arm, several other officers arrived and entered into the struggle. Once these additional officers surrounded the man, Respondent removed himself from the fray. He began to look for his gunbelt and the equipment that fell off of him during the incident. He was concerned that members of the crowd might find the weapons first and use them against the officers. By the time he recovered all of his equipment, Mr. Copeland was gone from the scene. Respondent did not observe how he was subdued or by whom. When Respondent asked where the man was, he was told Mr. Copeland had been taken to Tampa General Hospital for treatment. Because he and his partner had started the arrest, Respondent went to the hospital to arrest the man and to take him to central booking. Once this was accomplished, he completed an incident report and a custody report. The Respondent's incident report and custody report both noted that Mr. Copeland was treated for a head laceration at Tampa General. His original speculation that it occurred during the arrest process was removed from the incident report at his supervisor's request because he did not observe it happen. Instead of making Respondent rewrite the report, his supervisor allowed him to "white out" the paragraph containing his speculations. Other officers who witnessed how the injury occurred could explain it in their reports. On July 2, 1990, Respondent was interviewed by an assistant state attorney during a criminal investigation into the allegation that Officer Canals may have committed an aggravated battery on Mr. Copeland during the events of March 17, 1990. During his sworn testimony, the Respondent indicated he did not know how Mr. Copeland acquired the head injury. Respondent did not see Officer Canals on the hood of the unmarked police car and he did not see him strike Mr. Copeland. In a more expansive interview a few days later, Respondent explained to the same assistant state attorney what he recalled about the arrest incident. He acknowledged that he had not offered information beyond the specific questions previously asked because he had been taught at the Academy to answer only the questions asked by attorneys doing depositions. Internal Affairs conducted a third interview of Respondent so he could explain what appeared to be inconsistencies between the first interview with the assistant state attorney and the second interview. During the Internal Affairs investigation, the investigator placed great significance on the fact that Respondent did not tell the assistant state attorney that he had struck the man with his flashlight, even through the incident report in the assistant state attorney's possession indicated that Respondent hit him in the arms three times. It was suggested that Respondent's statement indicated he might have caused the head injury with his flashlight. Respondent's prior statement to the assistant state attorney shows he considered the question of whether he could have caused Mr. Copeland's head injury when he used his flashlight as a weapon. He discounted the possibility, however, when he distinctly recalled hitting the man only on the right arm. Respondent's attempt to openly examine his own actions in front of the assistant state attorney was candor as opposed to a recantation. He was not being deceptive or inconsistent. Instead, he was trying to be cooperative and helpful. The fact that Respondent testified he was not aware of Officer Canals' appearance on the hood of the police car during his first interview with the assistant state attorney was consistent with his second interview in which he recalled officers coming over the roof of the vehicle. He was unable to name the officers because he was new to this particular shift and he was preoccupied with Mr. Copeland and the subsequent search for his weapons.
Recommendation Based upon the foregoing, it is RECOMMENDED that the commission enter a Final Order dismissing the charges filed on August 8, 1991 against the certification of Martin B. Gonzalez as a law enforcement officer. DONE and ENTERED this 20 day of August, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 20 day of August, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #4. Rejected. Contrary to fact. See HO #5 - #8. Accepted. See HO #8. Rejected. Contrary to fact. See HO #9. Accepted. Rejected. Contrary to fact. See HO #13. Accepted that this occurred. Reject that Respondent observed incident. See HO #14. Accepted. See HO #15. Accepted. Rejected. Contrary to fact. It was clear that Respondent was speculating as to how injury occurred because he had previously explained that he did not see it happen. See HO #18. Rejected. Irrelevant. Rejected. Contrary to fact. Respondent was exploring the possibility of whether he may have hit Mr. Copeland on the head with his flashlight while he was being questioned by the assistant state attorney. See HO #21 - #22. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Rejected. Contrary to fact. See HO #2. Accepted. Accepted. See HO #4. Rejected. Places an improper slant on facts. See HO #7 - #9. Mr. Copeland neither swore at Respondent nor did he intentionally strike him. More than likely, Respondent ran into Mr. Copeland's arm as Respondent's partner was attempting to swing the man around with his back to police. Rejected. Contrary to fact. Rejected. Contrary to fact. Respondent should have been assisting police Officer Posley who had control of one of Mr. Copeland's arm first. Mr. Copeland was not resisting with violence, he was just resisting. Respondent Gonzalez mischaracterized Mr. Copeland's response to the arrest because he believed he had been intentionally struck by Mr. Copeland. See also HO #10 - #13. Rejected. Irrelevant. Accepted. Accepted. See HO #13. Accepted. See HO #14. Accepted. See HO #15 and #16. Accepted. See HO #17 - #20. Accepted. Accepted. Accepted. See HO #14. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #12. Accepted. Copies furnished: DAWN WHITEHURST ESQ ASSISTANT GENERAL COUNSEL FL DEPT OF LAW ENFORCEMENT PO BOX 1489 TALLAHASSEE FL 32302 STEPHEN W FOXWELL ESQ FL POLICE BENEVOLENT ASSOCIATION 300 E BREVARD ST TALLAHASSEE FL 32301 DAVID A DEE ESQ STULL DEE & BARBER 602 SOUTH BLVD TAMPA FL 33609 JEFFREY LONG/DIRECTOR RODNEY GADDY ESQ CRIMINAL JUSTICE STANDARDS GENERAL COUNSEL COMMISION FL DEPT OF LAW ENFORCEMENT PO BOX 1489 PO BOX 1489 TALLAHASSEE FL 32302 TALLAHASSEE FL 32302 JAMES T MOORE COMMISSIONER FL DEPT OF LAW ENFORCEMENT PO BOX 1489 TALLAHASSEE FL 32302
The Issue The issue in this case is whether Petitioner's application for licensure as real estate sales associate should be granted.
Findings Of Fact On February 28, 2011, Mr. Poppell filed with the Commission an application for licensure as a real estate sales associate. In his application, Mr. Poppell stated that he was pleading not guilty to current charges of "trafficking, possession and receiving stolen property." By letter dated April 7, 2011, Mr. Poppell sent to the Commission the Alabama Uniform Incident/Offense Report relating to his arrest in Tuscaloosa, Alabama, on September 12, 2010, for trafficking in illegal drugs and unlawful possession of a controlled substance. At the time of his arrest, Mr. Poppell was a student at the University of Alabama. The criminal case against Mr. Poppell is currently pending, and Mr. Poppell does not anticipate that it will be resolved until 2012. Mr. Poppell, who is 22 years old, posted bail of $175,000. He currently lives in Florida and owns a pizza and sub restaurant with his mother in Niceville, Florida. On July 14, 2011, the Commission filed a Notice of Intent to Deny Mr. Poppell's application. The Commission's denial was based on Mr. Poppell's criminal history as revealed in his application and the unpersuasive testimony or evidence presented by Mr. Poppell as an explanation or mitigating factors. The Commission cited the following statutory basis for denying Mr. Poppell's application: Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. * * * F. Found guilty of a course of conduct or practices which show applicant is so incompetent, negligent, or dishonest that money, property and rights of others may not safely be entrusted to applicant. 475.25(1)(o), 475.181 F.S. * * * M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. Additionally, the Commission cited section 455.213(3), Florida Statutes (2011),1/ as an additional ground for denial.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Mr. Poppell's application. DONE AND ENTERED this 1st day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 1st day of December, 2011.
The Issue Whether Petitioner should be given credit for certain answers provided on the State Officers Certification Examination (officers certification examination).
Findings Of Fact Petitioner, James H. Hall, Jr., took the officers certification examination and, thereafter, challenged certain answers to questions on the examination. Specifically, challenged questions were numbered 40, 49, 63, 89, 112, 115, 156, 143, 203, and 211. At hearing, Petitioner withdrew his challenges to questions 143 and 211, leaving eight questions to be challenged. The Commission is the state agency charged with the responsibility of administering officers certification examinations and establishing "standards for acceptable performance on each officer certification examination." § 943.1397(1), Fla. Stat. (2005).1 The officers certification examination is a multiple- choice examination with four answer choices for each question. Only one of the proposed answers is deemed correct. The answer deemed to be correct is the best of the four answer choices. The content of all the questions on the officers certification examination are derived from the basic recruit curriculum and from objectives that come from a job task analysis. The objectives appear in the beginning of every lesson of the curriculum. The curriculum materials are available to all applicants who take the officers certification examination. All the questions on the officers certification examination have been validated and field tested. Question 40 was clear and unambiguous and asked applicants to identify immunizations required for law enforcement officers. The correct answer to the Question 40 is (a). Petitioner selected answer choice (c), based on his belief as to what communicable disease officers should and could be vaccinated against. The correct answer to Question 40 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 69 percent of all test takers who have answered this question have answered it correctly. Petitioner's reason for choosing (c) as the answer to Question 40 does not constitute persuasive evidence establishing that the answer he chose is correct. Question 49 was clear and unambiguous and required the applicants to demonstrate knowledge and application of the phonetic alphabet used by the Federal Communications Commission and the United States military. The correct answer to Question 49 is (a). Petitioner selected answer (c), based on his belief that the response next to that choice "flowed, that it didn't have too many syllables in it." The correct answer to Question 49 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 89 percent of all test takers who have answered this question have answered the question correctly. Petitioner's rationale for selecting answer (c) does not constitute persuasive evidence establishing that the answer he chose is correct. Question 63 was clear and unambiguous and required the applicants to demonstrate their understanding of various mental disorders. The correct answer to the question is (d). Petitioner selected answer (a). The correct answer is included in the curriculum material and is not the answer chosen by Petitioner. The question is statistically valid, and 91 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 89 is clear and unambiguous and required applicants to know what an officer should do when a suspect is shot. The correct answer is (b). Petitioner selected answer choice (c). The correct answer is included in the curriculum material and is not the same answer selected by Petitioner. Question 89 is statistically valid, and 90 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 112 is clear and unambiguous and required applicants to demonstrate knowledge relative to parties at a traffic crash scene. The correct answer to the question is (d). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 115 is clear and unambiguous and required the applicant to demonstrate knowledge of the officers' duty regarding the Miranda warning. The correct answer choice is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 85 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 156 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the consent given by an adult needing assistance. The correct answer for Question 156 is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 73 percent of all persons who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 203 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the officers' responsibility in domestic violence incidents. The correct answer for Question 203 is (c). Petitioner selected the answer choice (d). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who have answered this question have answered the question correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Florida Department of Law Enforcement enter a final order rejecting Petitioner's challenge to the scoring on Questions 40, 49, 63, 89, 112, 115, 156, and 203 and dismissing the Petition. DONE AND ENTERED this 31st day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of May, 2006.
The Issue The issue in this case is whether Respondent, Florida A & M University Board of Trustees (“Board of Trustees”), improperly reassigned Petitioner, Dale Cassidy, to an alternative position at Florida A & M University (“FAMU” or the “University”); and, if so, whether Petitioner is entitled to damages or other relief.
Findings Of Fact Petitioner is a former employee of the University. He was hired in 2014 as vice president of Finance and Administration/Chief Financial Officer (“vice president of Finance/CFO”). He assumed the position at a starting annual salary of $195,000. In August 2015, he assumed additional duties and his salary was increased to $220,000 in recognition of the additional responsibilities. Petitioner served as vice president of Finance/CFO until March 14, 2017. Respondent is the Board of Trustees for FAMU, a university within the State University System. FAMU is a nationally known, historically black college located in Tallahassee, Florida. On Friday, March 11, 2016, Petitioner was visited in his office at FAMU by two individuals: Jimmy Miller and Santoras Gamble. The two came into his office as emissaries of the then-President of FAMU, Elmira Mangum. Miller was President Mangum’s chief of staff; Gamble was a “special assistant” to the President. The purpose of Miller and Gamble’s visit was to hand-deliver to Petitioner a letter signed by the President notifying Petitioner of a “change-in-assignment.” Specifically, Petitioner was being removed from his position as vice president of Finance/CFO and reassigned to the newly created position of Chief External Compliance and Ethics Officer (referred to herein as the “Ethics Officer”). His annual salary in that position would be reduced to $176,000 and he would receive normal (as opposed to enhanced) fringe benefits.1/ He would no longer be eligible to participate in the Executive Service pay plan which existed for certain high-level administrative and professional (“A&P”) staff. Petitioner’s change in assignment was to take effect the following Monday, March 14, 2016. Petitioner read the letter from President Mangum and dropped it on his desk. The two emissaries asked if he had any questions about the letter. He either told them he did not have any questions or he told them, “[no questions] that you can answer.” Either way, that was the end of the discussion between Petitioner and the two representatives of President Mangum. Miller, Gamble, and Petitioner then left Petitioner’s office and toured Lee Hall, purportedly looking for a new office for Petitioner once he assumed his new role. President Mangum’s office is also located in Lee Hall. Petitioner was ultimately moved to an office in the Foote-Hilyer building. On the day after the reassignment took effect, Jimmy Miller, as President Mangum’s chief of staff, issued a memorandum to the Board of Trustees. The memorandum outlined the changes in senior leadership assignments, including Petitioner’s reassignment to the position of Ethics Officer.2/ Over the next couple of weeks, Petitioner made his displeasure with the reassignment made known to a number of people. He was, however, especially unhappy that news of his reassignment (and presumptive demotion) was reported in the Tallahassee Democrat, the local newspaper. Petitioner moved into his new office on the fourth floor of the Foote-Hilyer building, in a suite of offices occupied by the vice president of Research, within two weeks of receiving the job change notice. On the day before he moved into his new office, Petitioner drafted a memorandum to his personnel file concerning his reassignment. The memo included the statement, “I accept this new role and pledge to perform the related duties . . . to the best of my ability.” On the day he assumed the new position, Petitioner wrote another memo that he asked to be placed in his personnel file. In the memo, Petitioner essentially complained that he had not been given any specific reason for the reassignment from the position of vice president of Finance/CFO. The memo did not mention that President Mangum’s emissaries had asked him if he had questions about the letter or that he had no questions for them. Petitioner did not point to any requirement in University regulations (or otherwise) that the President was required to give him a specific reason for the transfer. In fact, all A&P employees serve at the pleasure of the President and could have their employment terminated at any time, with or without cause. Petitioner received a request from President Mangum for him to meet with her concerning the change in assignment. The meeting was held (albeit on a day other than proposed by the President, pursuant to Petitioner’s request). At the meeting, ultimately held on March 21, 2016, Petitioner was presented with his new employment contract for the Ethics Officer position. He refused to sign the contract, citing his reasons, to wit: 1) He had not been told specific reasons why he could no longer serve as vice president of Finance/CFO; and 2) the President had not shared with him her vision of how she expected him to perform his duties in the new role. By not signing the employment contract, he knew that President Mangum would be within her rights to terminate his employment altogether. Petitioner seems to acknowledged that President Mangum “consulted” him about the new job classification at the meeting. He maintains, however, that it was too late to hold the consultation at that time. He provided no support or rationale for his stance. Petitioner then attempted to negotiate a different job description for the position to which he had been assigned. He asked for more salary, that the position be “interim” in nature, and that he retain his Executive Service benefits. President Mangum informed him that the University’s human relations department had “market priced” the salary and that it would not be changed. There is no evidence the other issues he raised were discussed at that time (or later, for that matter). As noted, Petitioner moved into his new office space on March 14, 2016, and by all appearances, assumed his duties as the Ethics Officer. He nevertheless maintains he did not believe he had ever formally served in that capacity. This testimony contravenes a memo he wrote on the day of his meeting with President Mangum. The memo, written to his personnel file, said, “I currently plan to accept the role [of Ethics Officer].” On June 21, 2016, Petitioner attended a seminar in Orlando relating to ethics and compliance officer regulations. In his travel request form, Petitioner identifies himself as “Officer, Compliance” and affirmed that the seminar constituted official business. His travel was approved and he attended the seminar. At final hearing, Petitioner said he attended the seminar as “an employee of the university” but not as the Ethics Officer. There is no evidentiary support for that contention and it seems unlikely in light of his travel documents. From March 14, 2016, until his resignation from employment, effective December 29, 2016, Petitioner was considered by the University to be its Ethics Officer. He performed duties associated with that position, operated out of the office assigned to that position, and accepted compensation for serving in that position. The University human resources officer (who was called as a witness by Petitioner at final hearing) opined that Petitioner’s actions clearly confirmed that he had accepted the position. A further example: On August 19, 2016, Petitioner issued a report on matters relating to his position as Ethics Officer. He signed the report, noting his position as “Acting Chief Compliance & Ethics Officer.” Petitioner said he signed the report that way because FAMU did not have “acting” administrative employees; they were either permanent or interim. However, Regulation 10.106(1)(b) states, “A&P employees who are appointed to established positions with an appointment status modifier or type, other than Regular (for example, Acting, Temporary or Visiting) are not entitled to a notice of non- reappointment.” Granted that section is referring to non- reappointment and addresses established positions, neither of which is relevant to the instant matter, but it does show that “Acting” is a nomenclature used by FAMU for A&P employees. Petitioner is seeking the difference in pay and benefits he received as Ethics Officer versus what he had been making as vice president of Finance/CFO, for the time period March 14 through December 29, 2016. He asserts that since he never signed the contract to be Ethics Officer, he never officially served in that position. The Personnel Action Request (“PAR”) in Petitioner’s personnel file was signed by President Mangum, the appropriate vice president (Ronica Mathis), and the HR Officer; and it clearly reassigns Petitioner to the position of Ethics Officer, effective March 14, 2017. The PAR, which sets out the employee’s current position, proposed new position, salary and other information, need not be signed by the employee. He or she would only be provided a copy of the PAR if they requested to review their personnel file. When asked what services he performed during his tenure as Ethics Officer, Petitioner responded, “Whatever the President, as my supervisor, asked me to do, which was largely nothing.” Petitioner did not provide further elucidation as to how doing “largely nothing” warranted additional payment from the University. Petitioner maintains he was not properly advised of his proposed reassignment pursuant to relevant University regulations. He cites to Regulation 10.209, Change-In- Assignment of Faculty and Administrative and Professional Employees, which states in pertinent part: The President or President’s designee may for the best interest of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Despite being asked by the President’s designees (Miller and Gamble) on March 11, 2016, whether he had any questions about the reassignment, Petitioner maintains he had no “consultation” as required by the regulation. Rather, he posits, all he received was “notice” of the reassignment. Petitioner points out that the dictionary definitions of consultation and notice are different and they do not share the same synonyms. From Petitioner’s perspective, consultation would involve some degree of give and take between the President and the employee. Or, as he stated in his PRO filed in this case, the synonym for consultation is “asked to discuss or exchange views” of a matter. Petitioner says that Miller and Gamble asking him if he had any questions was not sufficient “consultation” on the matter. Petitioner provided no other support for his position. Further, Petitioner points out that Richard Givens, vice president of Audit and Compliance, was not notified about Petitioner’s reassignment. Petitioner maintains that Givens’ office was affected by the reassignment and thus should have been consulted as well. Givens stated at final hearing that his office “could have been affected” by the reassignment, but ultimately it had not been affected. Timothy Moore, vice president of Research, maintains that consultation means nothing more than a letter, email, phone call or other means of transmitting the fact to an employee. Clearly, Petitioner was provided notice of the reassignment and had opportunity to consult with the President’s representatives, but he refused to do so. Givens received notice of the reassignment when he read about it in the local newspaper. He does not remember being advised by anyone at FAMU concerning the change before it occurred, but received written notice on the day Petitioner started his new position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida A & M University Board of Trustees, upholding the employment action as to Petitioner, Dale Cassidy, and denying Petitioner’s claim for damages or other relief. DONE AND ENTERED this 13th day of April, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2017.
The Issue The issue in this case is whether Petitioner is entitled to credit for 14 challenged examination questions in the State Officers Certification Examination (SOCE) for Law Enforcement Officers.
Findings Of Fact Petitioner challenged 14 questions after failing the SOCE for the third and final time on September 30, 2009. The challenged questions are numbered 32, 62, 63, 79, 87, 128, 139, 154, 155, 156, 170, 187, 212, and 236. During the hearing, Petitioner withdrew her challenges to questions 79, 87, 155, and 212. Ten questions remain at issue in this proceeding. A preponderance of the evidence does not support Petitioner’s challenges to the 10 questions at issue. Expert testimony shows the challenged questions were validated through appropriate field testing. The questions are accurate to the curriculum and perform sufficiently during testing. The correct answer to each challenged question was identified in the curriculum by expert testimony during the hearing. The statistical probability of an examinee answering a question correctly is identified in the record by a "P" value. For challenged question 32, the “P” value was 0.80, which means that 80 percent of examinees answered the question correctly. Only 78 of 5,220 examinees chose the answer chosen by Petitioner for question 32. The "P" value for challenged question 62 was 0.76, meaning that 76 percent of examinees answered the question correctly. Only 222 of 1,655 examinees chose the response that Petitioner chose for question 62. The "P" value for challenged question 63 was 0.95, meaning that 95 percent of examinees answered the question correctly. Only 150 of 3,387 examinees chose the response that Petitioner chose for question 63. The "P" value for challenged question 128 was 0.59, meaning that 59 percent of examinees answered the question correctly. Approximately 2,142 of 4,456 examinees chose the response that Petitioner chose for question 128. The "P" value for challenged question 139 was 0.93, meaning that 93 percent of examinees answered the question correctly. Only 20 of 568 examinees chose the response that Petitioner chose for question 139. The "P" value for challenged question 154 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 51 of 4,331 examinees chose the response that Petitioner chose for question 154. The "P" value for challenged question 156 was 0.80, meaning that 80 percent of examinees answered the question correctly. Only 404 of 5,721 examinees chose the response that Petitioner chose for question 156. The "P" value for challenged question 170 was 0.81, meaning that 81 percent of examinees answered the question correctly. Only 596 of 4,681 examinees chose the response that Petitioner chose for question 170. The "P" value for challenged question 187 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 28 of 2,908 examinees chose the response that Petitioner chose for question 187. The "P" value for challenged question 236 was 0.92, meaning that 92 percent of examinees answered the question correctly. Only 133 of 2,449 examinees chose the response that Petitioner chose for question 236.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner’s challenge to the 10 examination questions from the September 20, 2009, Law Enforcement State Officer Certification Examination numbered 32, 62, 63, 128, 139, 154, 156, 170, 187, and 236. DONE AND ENTERED this 9th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 9th day of April, 2010.
The Issue The issue in this case is stated in three counts set forth the Administrative Complaint1/: Count I, whether Respondent, Ronald C. Hormes ("Hormes"), is guilty of violating section 475.624(15), Florida Statutes (2008),2/ by failing to exercise reasonable diligence when preparing or developing an appraisal report; Count IV, whether Hormes is guilty of obstructing an investigation in violation of section 475.626(1)(f); and Count V, whether Hormes is guilty of failing to properly and adequately supervise a registered trainee appraiser in violation of section 475.624(4); and Florida Administrative Code Rule 61J1-4.010.
Findings Of Fact The Division is responsible for monitoring all licensed and certified real estate appraisers in the state. It is the Division's duty to ensure that all appraisers comply with the standards set forth in relevant statutes and rules. Hormes has been a certified residential real estate appraiser for approximately 30 years. He operates a family-owned real estate appraisal business. At all times material hereto, Mariano M. Alvarez II ("Alvarez"), a state-registered trainee real estate appraiser, was performing appraisal duties under Hormes' supervision. Alvarez is one of approximately 55 trainees who have worked under Hormes' supervision since 1993. Alvarez first became a trainee in Hormes' office in May 1997. He left the office early in 2004, but returned as a trainee in July 2004. Alvarez remained a trainee in Hormes' office until April 2011. At issue in this case are three appraisals which will be referred to collectively herein as the "Townsend" appraisal. In May 2008, Alvarez was technically working as a trainee with Hormes. However, Hormes had not given Alvarez any assignments since some time in 2007. Alvarez had become engaged in the operation of a business outside the area of real estate appraising and was not actively seeking work from Hormes in the appraisal field. In the Spring of 2008, Alvarez received a request to engage in some appraisal work. He received an assignment letter for appraisal work from Karen Maller, an attorney representing some members of the Townsend family who were in a dispute concerning land and property left in an estate. The assignment letter dated May 30, 2008, asked Alvarez to prepare an appraisal and also to be an expert witness in an upcoming trial. It appears the assignment letter was emailed to Alvarez, i.e., there is no physical address for Alvarez on the letter. Most assignments are commenced by way of a letter setting forth the scope of the intended work to be performed. Sometimes the assignments are made by way of email, but hard copy letters are most common. The assignment letter was sent directly to Alvarez; Hormes was not an addressee on the letter, and it was not copied to him. A real estate appraisal trainee is generally not authorized to accept appraisal assignments directly. Alvarez apparently accepted the assignment from Maller and began working on the Townsend appraisal. The correspondence listed below followed the initial assignment letter: A June 30, 2008, letter from Maller concerning the upcoming trial dates in January 2009. The letter contained no physical address, but had email addresses for both Alvarez and Hormes. The email address for Hormes was his personal address, not his work address. A September 8, 2008, email from Maller to Alvarez, copied to Hormes, indicating receipt of Alvarez's draft appraisal. A September 14, 2008, email from Maller to Alvarez, copied to Hormes, seeking a draft for the residential portion of the appraisal. A September 15, 2008, email from Maller addressed to both Alvarez and Hormes, providing comments on the appraisal that had been submitted. A November 7, 2008, letter addressed to Alvarez (only) at Hormes' business address. Hormes does not admit any knowledge of the assignment accepted by Alvarez prior to receiving Maller's emails in September. At that time, Hormes became concerned and called Maller to inform her that she was not a client of his office. Hormes left messages with Maller concerning this fact, but it is unclear whether he ever talked directly to Maller. Hormes also attempted to call Alvarez about the purported assignment. Hormes testified that, "I put in, you know, phone calls to him. He is difficult to contact." Again, it is unclear at what point in time Hormes initially talked directly to Alvarez about this matter. After Hormes contacted Maller to inform her that she was not his client, Maller then sent Alvarez a letter in which Hormes was not copied. That letter dated November 7, 2008, basically reiterates the facts concerning the upcoming trial in January 2009, one of the two purposes set forth in the original assignment letter to Alvarez. The computer-generated footer at the bottom of the letter states: T:\Carrie\Geiger,William\ Townsendv.Morton\Correspondence\Witness 002-Alvarez.doc, as compared to the footer on the original (June 30, 2008) letter which says: F:\Carrie]Geiger,William\Townsendv.Morton\ correspondence\Alvarez-Hormes 001.wpd. Clearly the November correspondence was meant for Alvarez only. The reason for that change cannot be determined from the evidence presented at final hearing in this matter. It may reasonably be inferred that as of November, Maller no longer considered both Hormes and Alvarez her expert appraisers. Instead, the November 7, 2008, letter is addressed solely to Alvarez as "Expert-Appraiser." Alvarez was using Hormes' office during the time he was acting as a trainee. Hormes expected each of his trainees to do their work at his office, rather than operating remotely. Trainees had access to the office computers, fax machines, copiers, and a library of information. That being the case, it is difficult to ascertain why Hormes had difficulty contacting Alvarez once he found out about the Maller assignment. That is, if Alvarez was using Hormes' office to prepare the appraisal, he would seem to be accessible to Hormes. During his interview with the Division's investigator in December 2009, Hormes acknowledged some supervisory involvement with the Townsend appraisal. Hormes could not remember making any statement to that effect to the investigator at the final hearing in this matter. However, the investigator received confirmation from both Hormes and Alvarez that the appraisals provided to Maller were only in draft form. The investigator's testimony in this regard is credible. Hormes' attorney wrote a letter to the Division dated December 9, 2009, in which Hormes was described as the "Supervising Appraiser" for the Townsend appraisal. The attorney who wrote the letter was eventually released by Hormes based upon issues relating to competency. The attorney's law firm did not require Hormes to pay for that attorney's work. Hormes seemed to insinuate at final hearing that the release of his attorney indicates that the statements made in the December 9, 2009, letter were inaccurate. However, there was no competent or persuasive evidence to support that insinuation.3/ During the investigation undertaken by the Division concerning the propriety of the Townsend appraisal, Hormes and Alvarez were questioned by an investigator at a single interview. During that interview, Alvarez did most of the talking and responded to most of the questions about the appraisal. It is clear that Alvarez had the greatest amount of knowledge and information concerning the Townsend appraisal, but it is unclear how much knowledge Hormes had. Hormes was at least aware of the work that Hormes had done on the appraisal. The Townsend appraisal was, by everyone's admission, not an acceptable work product. It was flawed in many areas and failed to meet the minimum standards for a real estate appraisal. Hormes simply says that Alvarez had "gone rogue" and that he had done the appraisal on his own. At final hearing, Hormes disavowed any direct work on the appraisal or that he supervised Alvarez's work on the appraisal. In fact, Alvarez admitted to the investigator that he had forged Hormes' signature on the reports and that Hormes was not aware of that fact. During the course of the investigation by the Division, Hormes was asked to provide copies of the Townsend appraisal, along with the two other draft appraisals that Alvarez had been working on for Maller. Hormes advised the investigator that he would provide copies of the report, but he did not provide them. Portions of the work file from Hormes' office were provided to the investigator, but copies of the reports were never provided to the Division. Hormes contends he never knew about the Townsend appraisal and, therefore, did not have a work file concerning the report. However, if Alvarez was working on the reports using Hormes' office and equipment and Alvarez was still under Hormes' supervision at the time of the investigation, it is difficult to reconcile Hormes' stated inability to have the appraisal reports and Alvarez's work file made available. Further, as Alvarez's supervising appraiser, it seems that Hormes would be able to direct Alvarez to provide the reports. Alvarez was retained as a real estate appraisal trainee in Hormes' office throughout the investigation and during the preparation for final hearing in this matter. At some point just prior to the final hearing, Alvarez was released by Hormes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding Respondent, Ronald C. Hormes, guilty of Count V of the Administrative Complaint. A fine of $1,000.00 and a two-year period of probation should be imposed. DONE AND ENTERED this 10th day of June, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2011.
