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.
Findings Of Fact The following facts are stipulated by the parties and are incorporated herein: The Respondent has been the clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to this complaint. In July of 1990, the Respondent's wife was issued a citation for having glass bottles on the beach, a violation of municipal ordinance No. 16.30, City of Naples. On August 21, 1990, upon failure to timely pay the fine for the violation of the above-described ordinance or to appear in court on this date, an arrest warrant for Theresa Giles was issued. On August 30, 1990, on or about 4:30 p.m., police officers arrived at the Respondent's residence to arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a telephone call to her husband at the clerk's office. The Respondent went to one of his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers at the Respondent's home and informed them that the bench warrant for Ms. Giles was recalled. Ms. Giles was not taken into custody as a result of Ms. Stoll's action. These facts are derived from the evidence presented, weighed and credited: Respondent, James Giles was the Collier County finance director, performing the pre-audit function for the county, when he was appointed county clerk to finish a two year term in 1986. He was then elected to a four year term ending in January 1993, and was not reelected. His prior employment experience was as a private certified public accountant, an employee of St. Johns County, and an auditor for the State of Florida. On August 30, 1990, when Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and her elderly mother when the deputies came to serve the warrant and arrest her. The ticket, or "Notice to Appear" issued to Ms. Giles for her infraction plainly provides notice that if the fine is not paid or the person fails to appear in court at the appointed time, an arrest warrant shall be issued. (Advocate Exhibit No. 2) James Giles immediately called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation, she went to find the supervisor, Lorraine Stoll. As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up on the computer, Mr. Giles appeared in person. This was a very unusual situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate supervisor. He asked if there was anything that could be done and Ms. Stoll responded that the warrant could be recalled. Before she could explain any further, he handed her a paper with his home phone and asked her to make the call. Ms. Giles answered the phone and put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles was not arrested. Ms. Stoll then told Mr. Giles that the fine and court costs had to be paid. He said the whole thing was ridiculous, that he could not believe a warrant could be issued for such a minor offense. By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2). James Giles admits being upset at the time that the phone call was made, but was trying to calm down because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having bottles on the beach. He denies that he pressured Ms. Stoll, but claims he was trying to be rational and get sound advice. He wanted her to make the call because he felt it would "look bad" if he did. James Giles did not raise his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a pressure situation. Ms. Stoll had never been involved in a circumstance where the warrant was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of the clerk's office for eleven and a half years, as deputy clerk. No ordinary citizen could have received the advantage that the clerk and his wife received. Judge Ellis, a Collier County judge, has a written policy providing that a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis, requires that his office or the State's Attorney be called, and does not have a written policy. Ms. Stoll does not have the authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss told her to, and their main concern was that the warrant needed to be recalled so Ms. Giles would not go to jail. On the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her, nor did she have the opportunity to tell him the proper procedure before making the telephone call. James Giles' explanation that he was simply seeking advice of his staff and then acting on it without wrongful intent is disingenuous. Whatever his actual knowledge of proper procedures for recalling a warrant, he knew or should have known that what he was doing was not an opportunity available to other citizens. His experience in the clerk's office and in prior public service should have clued him that no one else could simply get a deputy clerk to intercept an arrest with a telephone call.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order finding that James Giles violated Section 112.313(6), F.S., and recommending a civil penalty of $250.00. DONE AND RECOMMENDED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4942EC The following constitute specific rulings on the findings of fact proposed by the parties: Advocate's Proposed Findings 1. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraph 9. Adopted in substance in paragraph 12. 8.-10. Adopted in substance in paragraph 10. 11. Adopted in substance in paragraph 13. Respondent's Proposed Findings 1. A.-E. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraphs 8 and 12. Rejected as the sequence suggested is contrary to the weight of evidence. Rejected as misleading. The evidence shows the process was incorrect and both staff knew it was incorrect. The clerk was informed about the correct procedure after the phone call. The procedure is set out in paragraph 13. The evidence is not clear that the fine and costs could not have been paid the same day. By the time Mr. Giles finished complaining, it was after 5:00. Rejected as contrary to the greater weight of evidence, considering the totality of Ms. Stoll's testimony as well as Ms. Heck's. Rejected as contrary to the greater weight of evidence. Rejected as immaterial. 3. Rejected as contrary to the greater weight of evidence. More specifically, this proposed finding suggests that the culpability was Ms. Stoll's rather than Respondent's. That suggestion is supported only by Ms. Stoll's timid admissions that she should not have made the phone call without having received the payment from her boss. Ms. Stoll's acceptance of blame does not relieve the Respondent of his responsibility. COPIES FURNISHED: Craig B. Willis Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399-1050 Raymond Bass, Jr., Esquire Bass & Chernoff 849 7th Avenue, South - Suite 200 Naples, Florida 33940-6715 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Petitioner, Kenneth Gilbert, should be granted an exemption from disqualification to work as a direct service provider with the developmentally disabled pursuant to Chapter 435, Florida Statutes.
Findings Of Fact On December 23, 1997, B.H. filed a Petition for Protection Against Domestic Violence in the Circuit Court of the 14th Judicial Circuit, Jackson County. The Respondent in the case was Kenneth Gilbert. B.H. alleged that on December 22, 1997, Mr. Gilbert committed acts of domestic violence including entry into B.H.'s home on December 22, 1997, after she denied Mr. Gilbert permission to enter. B.H. averred that Mr. Gilbert committed a battery upon her and made physical threats of violence to her. She further averred that Mr. Gilbert ripped a phone off of the wall. A Final Order of Injunction For Protection Against Domestic Violence and Order to Law Enforcement was entered on December 29, 1997. The injunction order provided, in part that "an immediate and present danger of domestic violence exists and that irreparable harm and injury will probably occur in the form of violence to Petitioner or persons lawfully with Petitioner unless this injunction is made permanent." Mr. Gilbert was ordered to "not come to any place where Petitioner [B.H.] is located" and "not harass, shadow, threaten or intimidate Petitioner." On May 4, 1998, Kenneth Gilbert was arrested by the Jackson County Sheriff's Department for the criminal offense of violating the injunction referred to in paragraph 2, above. B.H. drove into a gas station where Mr. Gilbert was, and Mr. Gilbert approached her car and attempted to kiss her. This created a disturbance and Mr. Gilbert was arrested. On May 5, 1998, the court detained Kenneth Gilbert on the charge of Violation of an Injunction for Protection Against Domestic Violence, a misdemeanor of the first degree pursuant to Section 741.31, Florida Statutes (1998). Kenneth Gilbert was referred by the court to pre-trial intervention and a counseling program called the Group Assistance Program. Although the program to which he was referred was a 26- week program, Mr. Gilbert was permitted to terminate participation after only 14 weeks for financial reasons. Based upon Mr. Gilbert's participation, the State's Attorney's Office ultimately dropped the Violation of an Injunction charge. Mr. Gilbert appears to have learned a great deal in these sessions. B.H. and Kenneth Gilbert have a daughter approximately two years of age. There have been continuing disputes regarding visitation and the unannounced appearances by Mr. Gilbert at B.H.'s place of residence. Petitioner indicated his desire to support and care for his daughter. B.H. does not want to have contact with Petitioner and views his desire to see the child as disruptive. No court ordered visitation has been established. B.H. works at the Sunland in Marianna and is familiar with the care required to be provided. She opined that Petitioner could provide such care without risk to residents based on her knowledge of Petitioner and the work. B.H.'s allegations of continued threats of personal violence by Kenneth Gilbert are not credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered by the Department of Children and Family Services granting Petitioner's request for an exemption from disqualification pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1999. COPIES FURNISHED: Kenneth Gilbert Post Office Box 522 Greenwood, Florida 32443 Steven Wallace, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Agency’s intended action to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Parties and Background Petitioner is a 57-year-old female residing in Jacksonville, Florida. Petitioner wishes to open her own group respite care home for adults with developmental disabilities. As such, Petitioner seeks to become a direct-care provider to the Agency’s clients with developmental disabilities. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. For the last 29 years, Petitioner has been employed by Vistakon, a division of Johnson & Johnson Vision Care, Inc. Her current position is Distribution Operator II, fulfilling customer orders for shipping. Petitioner is a long-term member of Faith United Miracle Temple in Jacksonville, where she serves on the usher board, greets churchgoers on Sunday mornings, and teaches children’s Sunday school classes. Petitioner is involved in many community service projects including Habitat for Humanity, Florida Blood Drive, feeding the homeless, and supporting her employer’s diversity and inclusion programs. The Disqualifying Offense On December 26, 2003, Petitioner, then known as Mamie Faith Fields, was arrested at her home and charged with domestic battery on her husband, Gregory Fields. Petitioner’s mother witnessed the incident. Petitioner was 44 years old at the time of the offense. The facts surrounding the incident are in dispute and there was insufficient reliable evidence for the undersigned to make any findings of fact relative to the details of the incident.1/ Petitioner pled no contest to the offense of domestic battery, was sentenced to eight months’ probation, and ordered to attend a batterer’s intervention course and pay court costs of $480. On June 26, 2004, Petitioner completed the Hubbard House First Step Program, a 24-class batterer’s intervention course. Petitioner’s probation was terminated early on July 26, 2004. Subsequent Non-Disqualifying Offense On May 8, 2007, Petitioner was involved in another physical altercation with Mr. Fields. The incident occurred while Petitioner was a right front-seat passenger in the vehicle Mr. Fields was driving. Petitioner was arrested and charged with domestic battery. The arresting officer observed scratches on Mr. Fields’ face and on the back of his right shoulder. The arresting officer observed no injury to Petitioner. Petitioner was 48 years old at the time of her arrest. The charges against Petitioner were dropped by the State Attorney’s Office and Petitioner was not prosecuted for any crime.2/ Subsequent Personal and Professional History Petitioner and Mr. Fields were divorced in 2011. Petitioner reported having attended six weeks of marital counseling with Mr. Fields, but the record does not support a finding of the timeframe in which the counseling occurred. Petitioner’s employment has not changed since the disqualifying offense. In 2014, Petitioner sought, and was granted, an exemption from disqualification from the Department of Children and Families (“DCF”). Her reported interest was in opening, or working in, a day care facility. By May 2015, Petitioner had completed over 50 hours of child care training, including child care facilities rules and regulations, early literacy, and family child care home certificates. Petitioner has not been employed with any child care provider subsequent to receiving the exemption from DCF. In response to questioning by the undersigned as to why Petitioner had not pursued employment with a DCF provider, Petitioner stated that there were “way too many restrictions” and that she had discovered that “if a kid says you hit them, an action could be taken against you.” Petitioner’s current interest is in opening a group home to provide respite care services for the Agency’s adult clients with developmental disabilities. Petitioner filed two previous applications with Respondent--in 2010 and 2014--for exemption from disqualification, but was denied both times. In 2016, Petitioner completed four courses required by the Agency for providers of direct-care services to its clients: Introduction to Developmental Disabilities; Health and Safety; HIV/Bloodborne Pathogens; and Zero Tolerance. The Agency has certified that Petitioner has completed a course required for providers in the Medicaid Waiver program. Earlier this year, Petitioner also completed HIPAA training and three hours of classroom training in “Personal Outcome Measures-Overview: Choices and Rights.” Petitioner’s Exemption Request The Exemption Questionnaire presented by the Agency to Petitioner listed three offenses to which she was to respond: the 2003 disqualifying offense, the 2007 non-disqualifying arrest, and an earlier 1994 arrest for aggravated battery/domestic violence. The 1994 offense involved Petitioner, then known as Mamie Faith Lundy, and her previous husband, John Lundy. The 1994 offense resulted in an arrest, but charges were later dropped and Petitioner was not prosecuted. In response to a request for her detailed version of the events of the 2003 disqualifying offense, Petitioner explained that “it was Christmas Day, my ex-husband was upset about me spending too much money. I didn’t want to hear him talk about it he got upset. We [had] guest[s] and it got out of control. Charges were dropped and we forgave each other.” Charges for the 2003 offense were not dropped and Petitioner pled no contest to domestic battery. The offense of battery requires an intentional touching of another person against their will, or intentionally causing harm to another person. See § 784.03(1)(a), Fla. Stat. (2015).3/ Petitioner’s version of the disqualifying offense does not contain any relevant detail regarding the offense. At hearing, Petitioner testified only that “he pushed me and I pushed him back.” In response to the question regarding the degree of harm to the victim or property, Petitioner stated “there is no property, no victim harm.” According to the observations of the police officer at the scene in 2007, Petitioner scratched her then-husband’s face and right shoulder. With regard to stressors in her life at the time of the disqualifying offense, Petitioner wrote “there were divorce[s] in both marriage[s].” With regard to current stressors, Petitioner revealed, “No current stressors. My support system is my family, God, children, job, friends, church family, Bible. I [am] living alone now.” When requested to list her educational achievements and training, Petitioner responded that she attends “Word of Life students’ bible school.” Regarding counseling she has received, she listed “Alison Behrens, six weeks.” Apparently Ms. Behrens is the marriage counselor she saw with Mr. Fields, but the record does not reveal whether the counseling was before or after the 2003 offense, or even after the 2007 non-disqualifying offense. The most relevant answer given by Petitioner on her exemption questionnaire was with respect to accepting responsibility, and expressing remorse, for her actions. Tellingly, Petitioner stated, “I feel very bad about my action, not to leave when people get upset. Try not to let people know what going on in my family. And I feel responsibility for let[ting] things go to[o] far. I feel very remorse about it. I’m very much ashamed as a mother, and a Grandmother that I allowed this to happen to me.” Petitioner’s explanation sounds more like regret for allowing others to learn the details of incidents involving battery on her husband, rather than remorse for losing her temper and striking out at another person. Furthermore, Petitioner’s statements express regret for what has happened to her, rather than harm she has inflicted on others. Similarly, at hearing, Petitioner testified that in 2003 she had left her home, but that her mother called her and asked her to return. Petitioner stated that it was a “mistake” for her to have returned to the house, but she did not describe as mistakes the actions she took upon her return. Along with her exemption application, Petitioner submitted two character reference letters.4/ Anthony Howard, an Elder in Petitioner’s church, described her as “kind, compassionate, and a hard working person” and applauded her commitment to the church as an active member, Sunday School teacher, and usher. A letter from Michelle Dunnam describes Petitioner as the “most kind hearted person I know” and applauds her volunteerism. The letter does not reveal how long she has known Petitioner or in what capacity. There is no record evidence of Ms. Dunnam’s relationship to Petitioner, whether family, friend, employer, or otherwise. Along with her request for a hearing, Petitioner submitted one additional character reference letter. Eric Mitchell, her employer’s Diversity and Inclusion Community Ambassador, submitted a “letter of appreciation” for Petitioner’s continuous service to the Jacksonville community through Habitat for Humanity, Florida Blood Drive, feeding the homeless, and supporting the Employee Resource Groups in their message of diversity and inclusion and at her church. When asked if any of those who submitted character references were aware of her disqualifying offense, Petitioner was defensive and seemed concerned that someone at the Agency might reveal her background to them. Final Hearing At final hearing, Petitioner presented very little testimony and no witnesses on her behalf. Petitioner presented two additional character reference letters: One each from both of her ex-husbands. In his letter, Mr. Lundy described Petitioner as an excellent mother, caring, intelligent, motivated, and “more than capable of managing a group of people.” He cited her long-term employment and her involvement with the church as evidence of her dedication to family and community. He explained that Petitioner had asked for forgiveness and that they have forgiven each other. Mr. Fields wrote that Petitioner has expressed that she is truly sorry, that he has forgiven her, and that he hopes for her to have a successful life. Despite Petitioner’s obvious commitment to her church and community, Petitioner’s case for rehabilitation is thin. Petitioner was involved in a subsequent domestic battery incident, in which she caused minor injury to her husband, after completing a batterer’s intervention course. There is no evidence of Petitioner pursuing anger management or any other counseling subsequent to the 2007 incident. Furthermore, the 2007 incident took place in a car while Mr. Fields was driving, which put Petitioner, her husband, and other drivers at risk, a fact which was not acknowledged by Petitioner. Petitioner was not forthcoming with the details of any of the incidents in question, yet denied the details as recorded in the police reports. Petitioner was middle-aged when the 2003 and 2007 incidents occurred, thus eliminating any explanation on the basis of lack of maturity. Petitioner’s community volunteer work is laudable and she has reason to be proud of her service. However, the work does not demonstrate Petitioner’s ability to calmly handle day- to-day difficult situations with developmentally-disabled clients. Even Petitioner admitted that she has not encountered behavioral issues with the children in her Sunday school class because their “parents are right there.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 8th day of November, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 8th day of November, 2016.
The Issue Whether Petitioner entered a plea of nolo contendere to a felony thereby triggering the statutory mandate that the Department of State revoke his Security Officer's license for a period set by statute?
Findings Of Fact Chapter 493, Florida Statutes, governs the private security, investigative and recovery industries. The industries were found by the Legislature when it passed Chapter 90-364, Laws of Florida, in 1990, to be "rapidly expanding fields that require regulation to ensure that the interests of the public will be adequately served and protected." Section 493.6100, Florida Statutes. Among the findings announced by the Legislature in the enactment of the chapter was that "persons who are not of good moral character engaged in the private security, investigative or recovery industries are a threat to the welfare of the public if placed in positions of trust." Id. Petitioner, the Department of State, (the "Department") is the agency of the State of Florida conferred with administrative authority under Chapter 493, Florida Statutes. Among its duties are the receipt of applications for Security Officer licenses and their processing (including a background investigation) ultimately culminating in either issuance of the license or denial of the application. After issuance of a license to a new licensee, the Department has authority based on certain grounds to take disciplinary action against the licensee ranging from a reprimand to revocation of the license. Respondent, Louis Palmieri, holds a Class "D" Security Officer License issued by the Department. Bearing the license number D91-04959, the current license has been effective since March 25, 1997. On or about April 7, 1994, in Duval County, Florida, Respondent entered a plea of nolo contendere to the offense of "lewd and lascivious act upon a child," in the Circuit Court of Duval County, Florida, in Case No. 94-2507CF. An order of probation was rendered under which adjudication of guilt was withheld in favor of probation for five years under the supervision of the Department of Corrections. Neighbors and long-time friends of the family of Mr. Palmieri are aware that he entered the plea of nolo contendere to a felony. They are also aware of the nature of the felonious charges and his status as with regard to the criminal case as being "on probation." Still, they hold him in high regard. He is seen as reliable and a good worker. Those who occasionally drive him to work or have seen his workplace were quick to point out that there are no children present at the place where he is currently employed as a security officer. Mr. Palmieri has not shielded his neighbors from his misdeed. In fact, he has confided in them that the circumstances leading to his nolo plea involved exposing himself in public in the presence of a twelve-year old girl. Nonetheless, one of his neighbors, the grandmother of a five year-old girl who frequently cares for the child, stated that she would not hesitate to invite Mr. Palmieri over to her house for dinner in the presence of her granddaughter so long as Mr. Palmieri and the child were never left alone. Despite his neighbor's willingness to issue such an invitation, and to his credit, Mr. Palmieri informed his neighbor that he could not be in the child's presence consistent with the terms of his probation. Mr. Palmieri remains under the supervision of the Department of Corrections to this day. Absent a violation of probation, April 6, 1999, will be the last day of probationary supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, its is RECOMMENDED: That the Department of State enter a final order revoking the Class "D" Security Officer License of Louis Palmieri, License No. D91-04959, and that he not be able to reapply for a license pursuant to Chapter 493, Florida Statutes, until a period of three years has expired since his final release from supervision, whenever that may be. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. _ DAVID M. MALONEY Administrative Law Judge Hearings Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Douglas D. Sunshine Assistant General Counsel Office of the General Counsel Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Cathleen B. Clarke, Esquire Melbourne Financial Centre, Suite 102 1990 West New Haven Avenue Melbourne, Florida 32904 Honorable Sandra B. Mortham Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 John M. Russi, Director Division of Licensing Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue Whether Petitioner has demonstrated rehabilitation from her disqualifying offense, and whether Respondent’s intended agency action to deny her request for an exemption is an abuse of discretion.
Findings Of Fact Respondent is the state agency charged with providing services to persons with developmental disabilities, including those with autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. The population the Agency serves is one with a heightened risk for abuse, neglect, and exploitation, and people employed to work with this population are considered to be in positions of special trust. Anyone seeking employment with an entity that serves this fragile population is required to undergo a Level 2 screening, in order to ensure that someone who has been convicted or found guilty of certain enumerated crimes is not placed in a position of trust with the people the Agency serves. Petitioner applied for a position with an entity called “The Mentor.” The position for which she applied required that she undergo Level 2 screening. A Level 2 background check was performed by the Department of Children and Families. The background check included criminal history record checks at state, national, and local levels. Petitioner’s state and local criminal record checks were clear. However, the background check revealed that Petitioner has a disqualifying offense that was committed in 2002 in Virginia. The background check also revealed some subsequent arrests and one non-disqualifying conviction occurring after the disqualifying offense. On December 14, 2015, the Department of Children and Families notified Petitioner by letter that she was disqualified from employment by virtue of her disqualifying offense, identified in the letter as grand larceny. The letter notified Petitioner of her eligibility to seek an exemption from disqualification. Petitioner completed a Request for Exemption Questionnaire, which was provided to her. She obtained those documents related to her criminal history that were available, but was unable to retrieve all of them due to the passage of time. She also submitted copies of documents related to her training and education, employment history, and restoration of her civil rights. There is an Exemption Review Request Checklist that gives some aide in completing the exemption packet, but there does not appear to be a set of instructions or any directions regarding what is sought in the questionnaire. For example, the checklist and the questionnaire speak of providing information regarding “each of your criminal offenses.” There is no explanation that “offenses” is meant to include not only convictions, but guilty and nolo contendere pleas, and arrests where the charges were dismissed. Similarly, the questionnaire asks the applicant to list “stressors” existing at the time of the disqualifying offense and existing now, but does not ask an applicant about their background. Petitioner testified that she called the Agency with questions regarding information to be supplied with the questionnaire, but did not get any meaningful assistance. By letter dated May 27, 2016, Barbara Palmer, as director of the Agency, notified her that the Agency had denied her request for exemption from disqualification because she had not submitted clear and convincing evidence of rehabilitation. No further explanation of the Agency’s decision was provided. Petitioner was notified of her right to request an administrative hearing if she disputed the Agency’s decision, and she timely invoked this right. Petitioner was born June 25, 1982, and is approximately 34 years old. She never knew her father, and her mother was a drug addict. Her older brother provided what little parenting she received, and the environment in which she grew up had no real moral compass. As a result, it was easy for Petitioner to become entangled with people who were not healthy influences. The Disqualifying Offense The offense which disqualifies Petitioner from holding a position of trust occurred on February 13, 2002, when she was 19 years old. Ms. Smiley was a back-seat passenger in a stolen car. When the car was stopped by police, the others in the car fled the scene. Ms. Smiley did not flee, but refused to give up the names of those who had. As she stated in her exemption questionnaire, “I was young and dumb at the time, and believed I was protecting my friends by not giving the cops their names. I was very very foolish!” Ms. Smiley was originally charged with grand larceny (the crime that the Department of Children and Families identified), but pled to and was found guilty of receiving stolen property, a felony under Virginia law, as well as a lesser included misdemeanor offense of eluding a police officer. As a result of the plea agreement, on May 30, 2002, Ms. Smiley was sentenced to two years’ incarceration for Count 1 and 12 months’ incarceration for Count 2. The court suspended the sentences for both counts, subject to two years of unsupervised probation, payment of court costs of $1,315.50 and restitution of $700 to the owner of the car.1/ As of February 1, 2008, Petitioner paid both the costs and the restitution related to her disqualifying offense, and she received releases of judgment for them from the Norfolk County Court. She also wrote a letter of apology to the victim and stated in the questionnaire that the victim in turn had given her encouraging words regarding the importance of the company one keeps that she has taken to heart. Subsequent Criminal Events Agencies conducting disqualification exemption requests are permitted to consider arrests and convictions that occur after any disqualifying offense, whether or not the subsequent event would be considered a disqualifying offense if the applicant was found guilty, and regardless of the disposition of any arrest. Based on its authority to do so, the Agency considered the following events in Petitioner’s past when it denied her request for an exemption. There was some mention at the hearing of an arrest in 2003, which the Agency indicates was explained in an e-mail which would be in Respondent’s Exhibit I. However, as noted previously, Respondent did not submit Exhibit I after the hearing, and there is no documentation regarding this arrest. However, it appears from the brief testimony at the hearing on this issue that Petitioner was actually the victim in this incident, and the charges against her were dismissed. On January 23, 2006, Petitioner was arrested and charged with indecent language. Petitioner was 23 at the time. The charge was dismissed on January 26, 2006. Petitioner explained that she had gotten into an argument with a friend when she learned the friend was seeing Petitioner’s boyfriend, and used some off-color language during the argument. It is surprising that this could, in this day and age, even be a criminal offense that is actually charged. One cannot help but wonder how small the employment pool would be if all who used indecent language could not hold positions of trust. Nonetheless, this ten-year-old arrest is a factor that the Agency considered, concluding that it was evidence of Petitioner’s lack of judgment. On June 1, 2009, Petitioner was arrested for failure to appear. The Norfolk, Virginia, criminal records indicate that the offense date was June 30, 2008. The charge was dismissed on June 29, 2009. Petitioner testified candidly that she totally forgot her court date and was remorseful about doing so. On June 14, 2009, Petitioner was arrested for obstruction of justice, a misdemeanor. Petitioner apparently pled guilty and was sentenced to 90 days in jail, with 80 days of the sentence suspended. Petitioner paid the costs associated with this offense on or before October 5, 2009. Petitioner explained that she and some friends had been partying, and that she “mouthed off” at a security guard. She described her behavior has “completely out of line,” for which she took full responsibility. She no longer drinks alcohol or parties, because she wants to be a better role model for her children. As is explained below, Petitioner left the Norfolk area and moved to Fairbanks, Alaska, where she sought and received training in counseling for alcohol and drug abuse. She worked as a counselor in Fairbanks until moving to Florida in 2013. Her efforts to obtain employment in Florida have been stymied by the requirement for Level 2 screening. While she has not been employed since moving to Florida, she has worked toward obtaining her education and has been active in her church and her children’s education. Educational History On June 15, 2002, after the entry of the felony plea, Ms. Smiley graduated from Granby High School in Norfolk, Virginia. On October 6, 2011, Ms. Smiley received her certification from the Regional Alcohol and Drug Abuse Counselor Training Program (RADACT), in Anchorage, Alaska, as a Counselor Technician/Behavioral Health Aide I. To earn this certification, she completed 112 hours of coursework from September 19 through October 6, 2011. On January 26, 2012, Petitioner completed two hours of continuing education in clinical documentation, approved by the State of Alaska, DHSS Behavioral Health. On June 7, 2012, Petitioner received a certification for the completion of a Motivational Interviewing course offered by RADACT, representing 16 contact hours. On October 4, 2012, Ms. Smiley received her certification from RADACT, as a Level I Counselor. To earn this certification, she completed 112 hours of coursework from September 17 through October 4, 2012. All of the certifications from RADACT indicate that the coursework has been approved by the National Association of Alcoholism and Drug Abuse Counselors and will be accepted by the Alaska Commission for Behavioral Health Certification. Ms. Smiley submitted documentation indicating that she had attended classes at Valencia College in the summer of 2015, taking classes toward her college degree. She also has taken courses at Seminole State College, although the time frame for this coursework is unclear from the documentation presented. Employment History Petitioner submitted the following information related to her work history on the exemption questionnaire. From May 14, 2000, to September 16, 2003, Ms. Smiley worked on a seasonal basis as a summer camp worker for the City of Norfolk Parks and Recreation Department. The undersigned notes that she was employed in this capacity during the time period when her disqualifying offense occurred, and that the City of Norfolk continued to employ her working with children, despite her felony conviction. There is no indication that any child was harmed as a result of the care she provided to children during her employment with the city. From October 1, 2003, to June 10, 2005, Petitioner worked as a youth counselor for the YMCA in Norfolk. Her job duties included assisting with homework and after-school activities in the YMCA’s before and after school programs. Ms. Smiley held this job working with children not long after her felony conviction, in the same town where the conviction occurred. Petitioner worked for the City of Norfolk, Parking Division, from June 10, 2006, through October 1, 2008, collecting parking fees. The City of Norfolk employed her in a position involving the collection of money despite her felony conviction for receiving stolen property. Ms. Smiley moved to Alaska, and from February 2, 2009, to February 13, 2013, Petitioner worked for Fairbanks Native Associates in Fairbanks, as a counselor.2/ In that capacity, she worked with clients to develop ways to cope with issues such as HIV, grief, stress, and addiction, and, potentially, to incorporate 12-step programs to assist with recovery and prevent relapse. With each of her jobs, Petitioner remained employed for a minimum of 20 months to approximately four years. Ms. Smiley left her job in Alaska in order to move to Florida. While she has sought employment in Florida, she has been unable to get past the Level 2 screening and cannot work in the field for which she has trained because she does not have an exemption. Community Involvement On December 9, 2015, Ms. Smiley’s civil rights to vote, hold public office, serve on a jury, and to be a notary public were restored by the Governor of Virginia. She has completed an application to register to vote in Florida. Ms. Smiley has three special-needs children and is an involved parent. She attends all of her children’s school functions and belonged to the PTA at her children’s elementary school. She also attends church twice a week and is active in a faith-based organization called “I am Judah.” Petitioner also provided to the Agency two positive letters regarding her character, from Daquisha Presley and Shavon Haskins. Both letters are glowing in their praise of Ms. Smiley, but contain no real explanation of how the writers know her or any description of activities in which she is involved that would point to rehabilitation. However, both letter-writers are from Virginia, making their attendance at a hearing in Florida unrealistic. Both writers speak of Ms. Smiley’s thoughtfulness and giving heart, with Ms. Presley also referring to her strength, grace, compassion, leadership, courage, and faith. The Agency’s Decision The Agency declined to grant Petitioner’s request for exemption, stating that she had not provided clear and convincing evidence of rehabilitation. At the hearing, the Agency gave little explanation regarding the reasoning behind its decision. It is unclear whether Agency personnel realized that Ms. Smiley’s disqualifying offense was receiving stolen property, as opposed to grand larceny, as identified in the Department of Children and Families’ December 14, 2015, letter. Mr. Sauve testified that Ms. Smiley’s lack of employment after moving to Florida was troubling and that the Agency had considered her non- disqualifying offenses since the 2002 conviction. In its Proposed Recommended Order, the Agency asserts that Petitioner “has not demonstrated any rehabilitation specific to the disqualifying offense, and a majority of the evidence given for her rehabilitation existed during the ensuing non-qualifying offenses.” The Agency did not indicate what would qualify as rehabilitation “specific to the disqualifying offense.” However, the record at hearing demonstrated that Petitioner paid all of the court costs and restitution related to the disqualifying offense, and wrote a letter of apology to the victim. She has stopped drinking alcohol, which contributed to her past indiscretions, and moved away from the environment where her troubles began. All of these actions are evidence of steps toward rehabilitation. Moreover, the statement that the majority of evidence Petitioner presented related to rehabilitation existed during the ensuing non-qualifying offenses is incorrect. With the exception of her high school diploma, all of the training and education that Petitioner has received occurred after the 2009 charge, which is the last encounter Petitioner had with the criminal authorities. The same can be said of her employment as a counselor. Her civil rights were restored in 2015; also well after the 2009 charge. Petitioner’s actions and her efforts to move past the behaviors leading to her legal issues must be viewed from two different perspectives: first, through the lens of her background and upbringing, in order to understand the environment in which she found herself and that which she now lives; and second, through the significant and laudable goal of the Agency to ensure that the fragile population it serves is not exploited or endangered. Petitioner testified at the hearing, and her testimony is something the Agency did not have the advantage of hearing before making its initial decision. As noted above, Petitioner did not have the benefit of a solid family structure. She did not know her father, and her mother was a drug addict. She views her behavior as a young adult for what it was: the foolish and irresponsible behavior of a young woman hanging out with the wrong people, and not thinking about the future. She admitted that her behavior in 2009 also was irresponsible, stating that she was “completely out of line.” She testified that she has removed herself from those influences in her life and no longer drinks or parties, instead focusing on being a mother to her children. The Agency points out that she also was a mother in 2009 when the final non-disqualifying offense occurred. While that is true, Petitioner has taken steps to improve her situation since that time: by obtaining training for employment and working in the counseling field, by attending her church and faith-based organization activities, and by being active in her children’s elementary school PTA. All are efforts that Petitioner has made in the last six to seven years to be a positive role model for her children and to rise above the circumstances in which she was raised. In short, she is attempting to provide for her children what no one provided for her. She also has used the time while she has been unable to gain employment to continue her education. The evidence considered at the hearing shows a woman who was truly remorseful for the actions in her past and who is doing her best to overcome the limitations of her upbringing and be a contributing member of society. Ms. Smiley has proven rehabilitation from the single disqualifying offense by clear and convincing evidence. Based on the evidence presented at the hearing, it also demonstrates that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony, coupled with the information presented to the Agency, established that Ms. Smiley presents no danger to APD clients, including children. Since her disqualifying offense, she has worked with children, been entrusted with money, and worked with those battling addiction and other stressors. While the Agency is right to take its responsibility to protect a particularly vulnerable population seriously, Ms. Smiley has demonstrated her ability and passion to work with those who are less fortunate than herself. As she stated in her Proposed Recommended Order, “I want to work with trouble teens [sic] because I know the STRUGGLE, I know how trouble is easy to get into and HARD to get out, even 15 years down the road.” She should be allowed to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disabilities enter a final order granting Petitioner’s request for an exemption from disqualification from a position of trust. DONE AND ENTERED this 12th day of September, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2016.
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
