The Issue Whether Respondent is subject to discipline for violating Subsection 943.1395(6) and/or (7), Florida Statutes, and/or Rule 27.0011(4)(d), Florida Administrative Code, in that he failed to maintain the qualifications established in Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent was certified by the Commission on October 26, 1995, and was issued Law Enforcement Certificate No. 153749. From October 17, 1994, to April 12, 2000, Respondent was employed as a law enforcement officer for the Escambia County Sheriff's Office. On or about March 29, 2000, the Street Crimes Unit of the Escambia County Sheriff's Office seized a large quantity of marijuana, in two grades, and brought it back to the station to be photographed and placed into evidence bags. Each evidence bag was sealed with a case number and the initials of Investigator Mark Jackson. When the evidence was set out for the media to see, Investigator Jackson noticed that one bag, containing the higher-grade marijuana, had been changed out. The packaging and taping had been changed; the marijuana inside the bag had been swapped out; and the handwriting and taping on the bag was different. Investigator Jackson notified his supervisor of his discovery, and all of the evidence was placed in the vault. The team was sent home. Investigators Paul Hawke and John Sanderson were contacted to look into the discrepancy. All fifteen members of the Street Crimes Unit, from sergeants to investigators, were asked to submit to a urinalysis as part of the internal investigation that ensued. All members of the unit, including Respondent, signed a consent for that purpose. Respondent was observed as being extremely nervous about submitting to the urinalysis, stating that he had handled so much marijuana that he was afraid it would be in his system just from touching it. The collection of urine samples did not occur until the day after the switch was discovered. Deputy Taylor assisted in the collection of the urine specimens, and kept notes of the times of the collections. He sealed and marked the urine samples, made notes, and delivered the samples to the Florida Department of Law Enforcement (FDLE) for testing on March 31, 2000, along with an appropriate tracking sheet. Crime lab analyst Lisa Zeller ran an initial screening test, then a gas chromatography mass spectrometry test which is a confirmatory test. It confirmed the presence of tetrahydrocannabinols (TCH), a component of marijuana, in Respondent's urine, above the level of 13 nanograms. TCH is rendered contraband by Subsection 893.03(1)(c)34., Florida Statutes (1999). Respondent, identified as "Exhibit Nine" on the FDLE lab report, was the only individual on the Street Crimes Squad whose urine sample tested positive for TCH. Respondent did not have an explanation that was plausible to law enforcement investigators as to how the TCH could have gotten into his system. He told them he sucked the air out of bags of marijuana to, in effect, "vacuum seal" the bags. This is not a standard law enforcement technique for preserving evidence. It is not necessary to preserve the freshness of contraband for evidentiary purposes. Respondent was terminated by the Escambia County Sheriff's Department because of his positive contraband drug test. The State Attorney filed criminal charges against Respondent.
Recommendation Based on the foregoing Findings of Facts 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 Respondent guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1999), and revoking Respondent's certification. DONE AND ENTERED this 29th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2003.
The Issue Whether Petitioner was the subject of discrimination based on her sex or handicap in leasing her apartment from Respondent in violation of Sections 804d and 804d or f of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act, Chapter 760.23(2) (4), Florida Statutes (2006).
Findings Of Fact Petitioner resided at Respondent’s Thacker I property for at least a year prior to her move to Respondent’s Pinewoods Place Apartments located at 5929 Pinewoods Place, Milton, Florida 32570. Petitioner moved to Pinewoods, Apartment 25, around March or April of 2003. Neither Petitioner nor Respondent had any material problems with each other during her residency at Thacker I. Her move to Pinewoods resulted from her request to move to a larger apartment. Pinewoods is a large complex managed by Respondent. Some of the units are subsidized by HUD. A list of tenants in the Pinewood complex reflect 58 tenants. Of the 58 tenants, 34 are female. Eleven of the tenants have a disability. In fact, Respondent contracts with providers who serve the disabled to provide apartments to their clients and provides such apartments regularly. Respondent accommodated Petitioner’s request to move to Pinewoods by not requiring a full year’s lease since she had already completed a year at Thacker I and by allowing Petitioner to transfer her deposit from the Thacker I apartment to the Pinewoods apartment. Because of these accommodations, Petitioner was permitted to lease her Pinewoods apartment on a month-to-month lease with an additional deposit of $95. Respondent also accommodated Petitioner in her move by leaving her rent amount the same as it was at Thacker I. Thus, Petitioner paid $400 a month rent instead of the normal $450 a month rent paid by other tenants in comparable apartments. Petitioner did not visit Unit 25 prior to her move to Pinewoods because it was occupied. No other units were available for her to inspect prior to her move. Additionally, HUD inspected the Unit 25 prior to Petitioner’s move and found no violations and that the apartment met HUD standards for being mechanically sound and safe. There was no evidence of any representations made by Respondent to Petitioner regarding Unit 25, and Petitioner did not introduce any evidence of such misrepresentations. Clearly, contrary to Petitioner’s assertions of misrepresentations about her apartment or her assertion that she looked at her Unit or a model, her apartment was not misrepresented to her prior to her move to Pinewoods, and no discrimination on the basis of sex or handicap occurred. Sometime after her move, Petitioner began to complain about her apartment. The evidence was vague regarding most of her complaints, and Petitioner declined to testify about many of her allegations. For instance, there was a vague complaint about leaves being blown into her yard from the sidewalk when the maintenance crew would clear the sidewalk of leaves. However, this method of clearing the sidewalk occurred throughout the complex and was not directed toward Petitioner. Likewise, there was a vague complaint about the trash lady disturbing Petitioner’s morning coffee by performing her assigned duty of picking up trash around the apartment complex. Again, there was no evidence of any activity being directed at Petitioner based on her sex or handicap. At some point, Petitioner complained to Respondent about her dryer vent not working properly. After several complaints and in an effort to resolve Petitioner’s complaint, Respondent’s maintenance person put an interior box-style lint trap, in her Unit. Respondent stated he felt this was the best solution because a member of the maintenance staff used the same type lint trap at his home. Petitioner, for a variety of reasons, was not satisfied with Respondent’s solution and vented the dryer to the outside herself. There is some dispute over whether Petitioner’s repair was safe or done correctly. There is no evidence that indicates Respondent discriminated against Petitioner on the basis of sex or handicap. Petitioner also complained about the sliding glass doors being fogged and wanted them replaced. Respondent explained that the doors were safe and that 55 other residents have fogged glass doors. Respondent refused to replace the glass doors. The next day Petitioner complained to HUD about the fogged glass door being “non-operable.” Because of the complaint, Robert Youngblood from the HUD office in Milton met Respondent’s maintenance staff at Petitioner’s apartment and discovered that the slider had been knocked off its track. Mr. Youngblood reported to Respondent that it was very clear the door had been sabotaged because he had just inspected that same door just days before because of a prior complaint. Respondent fixed Petitioner’s door again. Additionally, the sliding glass door that Petitioner complained about was inspected by both Santa Rosa Glass and Milton Glass. Petitioner also kept an untagged vehicle in the parking lot and threatened to sue if it were towed. All the Pinewoods’ leases contain a provision that untagged vehicles are not permitted on the premises and will be towed. In order to avoid the vehicle being towed, Petitioner switched the tag from her tagged vehicle to her untagged vehicle and back again as notice was given to her. Petitioner again felt this action was discrimination. Again there was no evidence to support Petitioner’s claim. On January 5, 2006, a little more than two years after she moved to Pinewoods, Petitioner complained, when she came to the office to pay her rent, that her garbage disposal did not work. The staff person who took Petitioner’s rent sent a maintenance person that day to look at Petitioner’s garbage disposal. The maintenance person looked at the alleged disposal location and discovered that Petitioner did not have a garbage disposal. There was no plumbing for one. The evidence showed that many units did not have a garbage disposal and that disposals were removed from each unit as they broke down. Petitioner insisted that she should have a garbage disposal since there was a switch on the wall for one. Because of her actions concerning the garbage disposal, Petitioner was given a Notice of Non-Renewal, dated January 6, 2006. Petitioner refused to pay any rent and refused to vacate the apartment based on her belief that Respondent had discriminated against her based on her sex and handicap. She maintained this belief even though she testified that “everybody had problems getting things fixed.” Indeed, her only witness corroborated that men and women, handicapped and non-handicapped have trouble getting things fixed. No reason was given for the non-renewal. Respondent testified that he was tired of Petitioner’s actions and deceitfulness. Petitioner chose to withhold her rent when it was due in February 2006, so that Respondent would bring eviction proceedings against her. Respondent eventually brought eviction proceedings against Petitioner. At the eviction hearing, Petitioner told the judge she wanted to be evicted so it would become public record. Respondent was awarded possession of the premises. After Respondent was given possession, the next morning he received a copy of a letter to the judge requesting that he rescind his decision and requesting another judge. Petitioner has since moved to another apartment. As with the other incidents described above, the evidence did not demonstrate that Respondent discriminated against Petitioner on the basis of her sex or handicap. Therefore, the Petition for Relief should be dismissed.
The Issue The issue in this case is whether the Respondent’s license should be disciplined; and if so, what penalty should be imposed.
Findings Of Fact The Respondent, Lashawn R. Williams, was certified by the Petitioner as a correctional officer on May 22, 2001, and was issued certificate number 197081. Eventually, the Respondent was employed as a full-time correctional officer by the Corrections Corporation of America. Sometime prior to June 20, 2004, the Respondent’s apartment received smoke damage from a fire that had occurred in the unit next to her. Because of the damage, she and her two children, ages seven and one, were required to temporarily move while repairs to her apartment were being made. She moved in with Typhrus McNeil and his father, Connie McNeil at 112 Cheri Lane, Parker, Florida. The McNeil residence is a small two-bedroom townhouse of approximately eight hundred square feet. The front door is located about twenty feet from the street. Typhrus McNeil was the Respondent’s boyfriend. At the time, they had been dating for approximately three years. Mr. McNeil was the father of the Respondent’s youngest child and occasionally took care of the Respondent’s children while the Respondent was at work. At the time, Typhrus McNeil was also under community control for a 2004 drug charge. The Respondent Knew Mr. McNeil had a past criminal history, but felt he had changed. On June 20, 2004, Officer Aaron Wilson of the Parker Police Department received a “Crime Stoppers” tip. The tip consisted of an allegation that a male and a female person living at 112 Cheri Lane in Parker were engaged in the sale of narcotics from the residence. The tip also included an allegation that the female subject was conducting hand-to-hand narcotics transactions with the occupants of vehicles that pulled up outside the residence. Over the next two weeks, Officer Wilson conducted approximately six surveillances and observed activities ongoing at the McNeil residence. During his surveillances, Officer Wilson observed the Respondent coming and going from the residence along with her two children. He observed them playing outside. Officer Wilson also observed Typhrus McNeil, whom he recognized from past arrests, and his father Connie McNeil, coming and going from the residence. He observed vehicles driving up to the residence for short stops and leaving. On occasion, he observed people from the residence talking for a short time with the occupants of the vehicles, sometimes going back into the residence and then returning a short time later to talk with the occupants of the vehicles again. The vehicle would then leave the area. Officer Wilson described such activity as indicating drug-related activity was going on at the residence. Officer Wilson only observed the Respondent talk to the occupants of a vehicle one time. During his observation, the Respondent spoke with the occupants for a short while, went into the residence and returned to speak with the occupants of the vehicle some more. The vehicle then left. Officer Wilson did not observe the exchange of any money or drugs. There was no evidence regarding who the occupants of the vehicle were or whether the Respondent knew the occupants of the vehicle. This one observation does not clearly and convincingly demonstrate that the Respondent was engaged in drug related activity. On July 1, 2004, Officer Wilson applied for and obtained a warrant from the Circuit Court in Bay County to search for controlled substances and other related items in the McNeil residence. The warrant also authorized searches of persons and vehicles present at the residence. On July 2, 2004, Officer Wilson, together with several other officers, served the search warrant at 112 Cheri Lane in Parker. Upon arrival at the residence, Officer Wilson knocked and announced his authority and purpose for being there. Present in the residence were Typhrus McNeil, Connie McNeil, the Respondent, her two children and two visitors. Officers located and seized several items in the bedroom shared by the Respondent and Typhrus McNeil. These items were in plain view lying on the headboard of the bed. These included Typhrus McNeil’s wallet, which contained $1704 in cash, another $1335 in loose cash and an open box of clear plastic sandwich bags with $13 in cash protruding from the top of the box. The cash appeared to be in denominations of $20 or less. The Respondent believed the loose cash was from Mr. McNeil’s paycheck, which he had recently cashed. Next to the bed, officers located and seized a closed shoebox on the floor. Inside the shoebox, officers found a set of electronic scales consistent with the type utilized for weighing quantities of illicit drugs for purposes of sale. Also, officers located and seized two plastic bags containing cannabis residue along with two partially burnt cannabis cigarettes in a closed dresser drawer located in the bedroom. The evidence did not demonstrate that the Respondent knew about the contents of the shoebox or the dresser drawer. None of her personal effects were in the dresser drawer. There was no evidence showing the length of time the cigarettes had been in the drawer. In the common living room of the residence, officers located and seized a cannabis cigarette lying on top of the television adjacent to a remote control. The cannabis cigarette appeared to be in plain view of the occupants of the residence. However, there was no evidence of the length of time the cannabis cigarette had been on top of the television or that the Respondent had observed the cigarette there. In fact, the Respondent denies knowing about the activity at the McNeil home or the Marijuana cigarettes in the house. During the course of the execution of the search warrant, officers also located and seized several items in the second bedroom, occupied by Connie McNeil. These items included a box found in Connie McNeil’s closet, which contained suspected cannabis seeds and two partially burnt cannabis cigarettes located inside a nightstand drawer. Officers also located and seized nineteen clear plastic bags, each containing approximately one-half ounce of cannabis. The plastic bags were under the bed in the bedroom of Connie McNeil. Together, such quantities and packaging demonstrate that Connie McNeil was engaged in illicit drug sales and not simply possession of illicit drugs. However, the evidence did not demonstrate that the Respondent was aware of the activities of Connie McNeil or the contents of his room. During the course of the execution of the search warrant, officers also located and seized five partially burnt cannabis cigarettes located inside a closed kitchen drawer. Again, the evidence did not demonstrate that the Respondent was aware of the cigarettes in the kitchen drawer, especially in light of the fact that she was only staying temporarily at the McNeil residence. The McNeils and the Respondent were arrested and charged with drug possession and sale. The Respondent was also charged with child neglect. Eventually, all the charges were dropped against the Respondent. The aggregate weight of the cannabis seized by the officers was in excess of 20 grams. However, in this case, the evidence only raises suspicions that the Respondent may have known about the possession of marijuana in the McNeil residence. At the time, the Respondent was a temporary occupant of the residence, waiting for repairs to be completed on her apartment. The evidence is neither clear nor convincing that the Respondent actually knew of such possession. Likewise, the evidence did not demonstrate that the Respondent was aware of or engaged in any drug sales during her stay at the McNeil residence. The most incriminating evidence was not found in the bedroom where the Respondent slept, but in Connie McNeil’s bedroom or in closed drawers and boxes. The one cannabis cigarette that was in a common area does not clearly or convincingly demonstrate that the Respondent knew it was there or that she knew of any drug activity at the McNeil house. Finally, the evidence did not demonstrate the Respondent criminally neglected her children when she was staying at the home of one of the children’s father. Vague testimony regarding the possibility that living in close proximity to illicit drug activity might cause danger to the occupants of the home is not clear or convincing evidence that the Respondent is guilty of criminal child neglect. Given this lack of clear evidence, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found not guilty of violations of Subsection 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2006. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lashawn R. Williams Michael Crews, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent was a public school teacher employed by the Washington County School Board under a continuing contract of employment at the time of the events referred to in the Petition for Dismissal. He remained on continuing contract status as a teacher at the Roulhac Middle School until his suspension on November 7, 1983. On the morning of April 5, 1982, William Poole, Chief of Police for the City of Bonifay, responded to a confidential informant's report of suspected marijuana plants growing on property located at 312 Caldwell Avenue, Bonifay, Florida. Chief Poole went to that location accompanied by Assistant Chief of Police Ike Gardner. When he arrived at the scene in the rear of the house located at that address and across the back fence marking the rear boundary of the property, the Chief looked over or through the fence on the rear boundary of the property and observed what he believed to be ten to twelve marijuana plants growing in a garden along the back fence. The house was owned at the time by the Respondent's Mother, Lavada Forehand, who was living in the house with the Respondent at the time the suspected marijuana plants were discovered. Chief Poole took photographs of the property, the garden and the suspected marijuana plants at that time, which were admitted into evidence as Petitioner's Exhibit 1. An investigation was initiated and in the early morning hours of April 7, 1982, Chief Poole again observed the suspected marijuana plants in the Respondent's garden. Later that day the Chief received a call from a confidential informant to the effect that the Respondent was, at that time, in the garden. Chief Poole proceeded to a residence on adjacent property and viewed the garden, and at approximately 4:00 p.m. that afternoon observed the Respondent watering plants in the garden for approximately 20 minutes. The officers were equipped with a camera with a telephoto lens at the time, and took photographs of the Respondent watering his garden, which were offered and admitted into evidence as Petitioner's Exhibit 2. Based upon his personal observations and the photographs which he obtained, Chief Poole proceeded to the State Attorney's office where he was assisted in the preparation of a search warrant for the subject property, which was duly issued by the Court. That evening of April 7, 1982, the two officers proceeded to the Caldwell Avenue residence owned by Respondent's mother, where the Respondent resided, and served the search warrant. When they arrived the Respondent was present with his mother and another lady with several children. The officers served the search warrant and thereupon went to the garden area which they had earlier observed and found it "standing in water." The suspected marijuana plants which they had previously observed were no longer present, and no traces of marijuana could be found in the house or on the grounds. At the time the premises were searched, and at the time the officers observed the Respondent watering the garden, the Respondent resided at the premises in question with his mother and by his own admission had resided there for approximately the last three weeks prior to April 7, 1982. In addition to the Respondent and his mother residing at the premises, various friends and relatives and other persons had access to the premises and visited there from time to time. Other persons have lived there or been invited there from time to time and his mother had problems during 1982 with trespassers on her property and has complained to the Bonifay Police Department regarding trespassers. Respondent acknowledges that he maintained the garden on the site growing tomatoes, bell pepper and other large and small vegetables including "a couple of hills of squash" and broccoli. On the day in question he was watering tomato plants according to his testimony. The Respondent has a nephew who sometimes resides with Respondent's mother and so do other young persons. The Respondent maintained he did not plant the marijuana plants and does not know who did plant them. In fact it has not been established that the Respondent planted the marijuana plants. The Respondent knows the neighbors who own the property and live adjoining his mother with the exception of neighbors who lived in the house from which the officers conducted the surveillance and from which the photographs were taken, who moved in and out quickly so that the Respondent did not become acquainted with them. The Respondent is active in his teacher's union and has incurred an increasingly hostile relationship with Superintendent Adams since 1981 when the Superintendent ordered interscholastic sports terminated at Roulhac Middle School where the Respondent coached as well as taught Civics. The Respondent conducted a campaign to reinstate athletics at the school at the behest of many of the parents of students at the school, and in the course of this campaign engendered a relationship of animosity with Superintendent Adams. The Respondent maintains that he cannot identify the plants depicted in the photos considered by the officers to be marijuana plants. He once smoked marijuana 14 years ago when in college but has not smoked it since and once taught a drug abuse course for the Northwest Florida Drug Abuse Council. He agrees with Superintendent Adams' view that a teacher using drugs should be dismissed but he denies doing so since becoming a teacher. Although it was established that the Respondent was likely capable of identifying marijuana by sight in view of his prior experience with the drug education course, it was not established that in fact he knew the marijuana was in the garden on his mother's property, nor was it established that he had sole access to or control of his mother's property, including the house and surrounding grounds, and particularly, the garden in question. Chief Poole had no doubt that the plants he observed, and which were photographed and are depicted in Petitioner's Exhibit 1, were marijuana plants. The Chief could not establish however, that the plants that Forehand was observed and photographed watering were actually marijuana plants as opposed to tomatoes, bell peppers, squash or some other vegetable which were present in the garden. Both Chief Poole and Agent William Fisher of the Florida Department of Law Enforcement are trained to make visual identification of marijuana. Chief Poole, however, is not trained to make a chemical analysis in identification of controlled substances, including marijuana, nor is he trained to give a positive identification of marijuana based upon other forms of testing, aside from visual identification. Agent William Fisher is very familiar with marijuana and testified that the plants depicted in Exhibit 1 "appeared" to be marijuana. Agent Fisher was shown the photographs of the plants the Respondent was watering but could not identify that the plants he was watering were actually marijuana. Agent Fisher testified that there was a "strong probability" that the plants depicted in Petitioner's Exhibit 1 were marijuana plants but added that he was not trained to make a positive identification of marijuana plants and did not consider himself qualified to do so. He was unable to perform any sort of "presumptive test" as for instance, by smell or taste or touch, because he was only shown a photograph of the plants in question. Chief Poole has had 11 years of law enforcement experience and attended numerous classes concerning drug enforcement and drug identification, and has served as a drug-handler for a "drug dog." In his years of law enforcement experience he has sent numerous samples of suspected marijuana to the FDLE Crime Lab in Tallahassee and Pensacola, and none of his samples have ever been confirmed as anything other than marijuana. Chief Poole, however, did not succeed in obtaining the plants he observed growing in the subject garden upon his search of the premises, however, because they had "disappeared." Thus, no chemical or other positive identification test has been performed on anymarijuana seized on the premises in question, because none was seized at all. The officers performing the search did not know whether other people might have access to the house and garden in question, and Chief Poole admitted he did not know who else might have access to the garden. The Respondent called five "character witnesses" (four teachers and one parent) each of whom had had acquaintance with the Respondent for a substantial period of time and had knowledge of his reputation in the community for truth and veracity. The Respondent has a reputation for being truthful. The Respondent has never before been subjected to disciplinary action during his career as a teacher.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint filed by the Petitioner herein should be DISMISSED and the Respondent should be reinstated with full back pay from the date he was suspended without pay. DONE and ENTERED this 18th day of December, 1984 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 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Charles Adams, Superintendent of Schools Washington County School Board 206 North Third Street Chipley, Florida 32428
The Issue The issue is whether Petitioner may revoke the license of Respondent to operate three group home facilities for failing a background screening due to a conviction of a felony for the possession of Cannabis with an intent to sell or deliver and a failure to disclose this conviction on his license application.
Findings Of Fact Respondent holds licenses issued by Petitioner for the operation of three group home facilities, known as Shibor Group Home No. 1, Shibor Group Home No. 3, and Shibor Group Home No. 4. Each license is for a term of one year. Mr. Orukotan is the sole corporate officer and shareholder of Respondent. In his capacity as an officer and employee of Respondent, Mr. Orukotan has completed and filed several applications for annual licensure of the three group homes identified in the preceding paragraph. In the affidavit portion of each application, Mr. Orukotan has answered, under oath, "no" to the question: "Have you or anyone identified as a board member or party to ownership, been convicted of a misdemeanor or felony?" By information dated October 11, 2001, the state of Florida alleged that, on September 12, 2001, Mr. Orukotan knowingly possessed MDMA, in an amount of at least 10 grams of MDMA, but less than 200 grams, and Cannabis, in excess of 20 grams. Both counts alleged violations of various provisions of chapter 893, Florida Statutes. Over three years later, Mr. Orukotan was tried in Broward Circuit Court, Case No. 01-15907CF10A, on three charges: a felony charge of trafficking in MDMA, a felony charge of possession of Cannabis, and a misdemeanor charge of an inoperative headlamp on a motor vehicle that he was operating at the time of his arrest. For 522 days of the interval between his arrest and trial, Mr. Orukotan was incarcerated. By a Circuit Court Disposition Order dated April 6, 2005, and presumably entered contemporaneously with the jury trial, the judge documented that the headlamp charge had been dismissed, Mr. Orukotan had been acquitted of the MDMA charge, and Mr. Orukotan had been convicted of a Cannabis charge-- specifically, Mr. Orukotan had been convicted of the "LIO"-- presumably meaning "lesser included offense"--of "poss cannabis"--obviously meaning possession of Cannabis. Adjudicating Mr. Orukotan guilty of the Cannabis charge, the court imposed a sentence of 364 days, so that, with credit for 522 days' incarceration, Mr. Orukotan was released from custody. The court appears not to have imposed a fine, but imposed court costs of about $200. The disposition order does not cite the statute on which Mr. Orukotan was adjudicated guilty, nor does it designate the lesser included offense as a felony or a misdemeanor. The disposition order does not describe any of the three charges as a felony or misdemeanor. Based on the length of the sentence, which is the maximum for a misdemeanor, and the notation, "lesser included offense," the greater weight of the evidence supports a finding of a conviction of a misdemeanor, not a felony, relating to the possession of Cannabis. Significantly, Petitioner has not contended in its proposed recommended order that Respondent was convicted of a felony Cannabis charge. Mr. Orukotan testified that, when he completed the above-described affidavits, he believed that he had been found not guilty of all charges. From Mr. Orukotan's perspective, after spending about one and one-half years in jail, it is entirely plausible that he went to trial, won, and was released with a small charge. Mr. Orukotan displayed no obvious cognitive difficulties during the hearing, but he spoke heavily accented English, and English may not be his native language. Regardless, if the actual trial and post-trial processes bore any of the ambiguity that characterizes the disposition order, Mr. Orukotan was understandably confused about what had transpired and may reasonably have concluded that he had been found not guilty of all charges, so that his failure to disclose the actual misdemeanor conviction on the applications was entirely inadvertent and excusable. The background screening report was not introduced into evidence. Petitioner's sole witness testified that she does not review the background screening; she reviews the work of the employee who reviews the background screening and does not read the background screening report itself. Petitioner's witness understood that Respondent's offense did not appear in the FBI screening, but only in the local screening.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of March, 2018. COPIES FURNISHED: Abimbola Orukotan, Manager Shibor Group, Inc. 5717 Mayo Street Hollywood, Florida 33023 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Respondent committed the violations alleged in Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations of fact, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since May 16, 1986, certified by the Commission as a correctional officer. He holds certificate number 12-86-502-02. Respondent was employed as a correctional officer with the St. Lucie County Sheriff's Department (hereinafter referred to as the "County") from October 9, 1985, until April 26, 1991, when he was terminated by the County. He was disciplined by the County on various occasions during the first several years of his employment. Thereafter, for a period of approximately two years, until the spring of 1991, he had an unblemished disciplinary record. On March 20, 1991, at approximately 5:00 p.m., Respondent was working in the intake and booking area of the St. Lucie County Jail when he was involved in an altercation with Mark Hornick, an inmate at the facility, as Hornick was being escorted, in handcuffs, through the area by another correctional officer, Deputy John Fischer. Hornick was complaining about not having been fed. Respondent approached Hornick and asked him if he wanted to file a grievance. Moments later he grabbed the much smaller Hornick from behind and then pushed him into a wall in an adjacent hallway. Hornick struck his head on the wall and sustained a cut just over his eye. After Hornick made contact with the wall, he turned around and faced Respondent. Respondent thereupon grabbed Hornick again and this time picked him off the ground. He held Hornick in the air for a brief period of time before releasing him. The force Respondent used against Hornick was not, nor should it have appeared to Respondent to be, reasonably necessary to defend himself or anyone else against the imminent use of force, to overcome Hornick's resistance to any command that he had been given, or to accomplish any other legitimate objective. As a result of this March 20, 1991, altercation with Hornick, Respondent was given a ten-day suspension by the County, which determined following an investigation of the matter that Respondent, in his dealings with Hornick, had engaged in the excessive use of force. During his suspension, Respondent knowingly and voluntarily used marijuana. Upon Respondent's return to duty on April 15, 1991, he was ordered by his supervisor to report to a doctor's office to undergo urinalysis testing. Respondent went to the doctor's office on April 18, 1991, and provided a urine sample. The sample was given a unique identifying number and promptly sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was properly protected and transported to a forensic laboratory, where it was received in good condition without any evidence of tampering. At the laboratory, the sample was kept in a secure manner throughout the testing process. Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample. An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of 9-carboxy, a unique metabolite of tetrahydrocannabinol (THC), the biologically active compound found in marijuana. Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method, was utilized. The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of 9-carboxy in a concentration of 41 nanograms per milliliter. The nanogram per milliliter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana within a time frame of approximately one hour to one week prior to the collection of the urine sample. Passive inhalation of another's secondhand marijuana smoke would produce much lower results. After these results were made known, Respondent's employment with the County was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a correctional officer as punishment therefor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of October, 1993. STUART M. LERNER 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 11th day of October, 1993.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 7, 2006. He holds certificate number 255361. On June 24, 2006, a Department of Corrections contraband interdiction team arrived at Gadsden Correctional Institution to conduct an operation that included the use of dogs to detect narcotics in vehicles parked in the Institution's parking lot. The Respondent was on duty at the Institution that day. After one of the dogs alerted on a car owned by the Respondent, the Respondent was summoned. He unlocked the car and consented to have his vehicle searched. The officer searching Respondent's car removed all the papers and other items from the glove compartment on the passenger side of the vehicle. He observed trash in the bottom of the glove compartment: sand, pebbles, hair, and the other normal debris that builds up over time in a glove compartment. Also on the bottom of the glove compartment was an unidentified sticky substance. The officer used his gloved hand to scrape up everything from the bottom of the glove box and placed it on a plain, white paper. Within the scrapings were a green leafy substance and a brown leafy substance. He separated these substances from the other debris on the white paper and placed them on his gloved hand. The quantity of substances he recovered was, according to his description, less than one gram, the size of a couple pinches of salt, a minute amount the size of a dime or smaller. He then took the substances on his hand to the interdiction team leader, who performed a reagent field test and determined that they were cannabis. It was the officer's opinion based upon his expertise in the identification of cannabis that the substances had been in the glove compartment for a long time. The officer then entered the back of Respondent's vehicle and removed the back seat. The area under the back seat had not been cleaned in a "very, very long time," and he discovered pebbles, gravel, sand, moldy French fries, and other debris. He also observed what looked to him like the residue of cannabis but did not bother to remove or test it. Doing so would have required hand-picking through the dirt and debris with a tweezers. Respondent was relieved of duty and has not worked as a correctional officer since that time. At the time, Respondent denied that the cannabis was his, denied any knowledge of it, and offered to take a urinalysis. However, he was not tested, and there is no evidence that any criminal charges were ever filed. At the time, Respondent owned two cars. His primary vehicle, which he drove to work and which he would not loan to others to drive, was a 2004 Chevrolet Impala. His secondary vehicle, which he did not drive to work and which he loaned to others to drive, was a 1999 Buick which he had purchased in March 2005. The vehicle searched by the interdiction team that day was the Buick, which had just been returned to him after being out on loan for approximately a month, and which he decided to drive to work that day. Among the persons who drove the Buick were Monica Phillips, Rontez Phillips, and Rontarius Phillips. The first two persons testified at the final hearing. Rontarius Phillips did not testify since he is incarcerated. The criminal conduct causing his incarceration was not revealed at the final hearing. Monica Phillips is Respondent's girlfriend. They have been together for seven years and have 3 children. Rontez Phillips and Rontarius Phillips are cousins of Monica, but Respondent sometimes refers to them as his cousins since he and Monica have been together for so long.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint in this cause. DONE AND ENTERED this 14th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2007. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Damari V. Wade
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502- 09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact) 1. - 14. Accepted. COPIES FURNISHED: Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey S. Richter 3881 Highway 273 Graceville, FL 32440 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
