The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of February, 2004.
The Issue The issue is whether Respondent Three Rivers Legal Services engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact The Petitioner Attorney Kaimowitz was born on May 5, 1935. He attended the University of Wisconsin, served in the U. S. Army, and was a journalist early in his career. He worked to obtain voting rights for African-Americans in the Deep South as a volunteer for the Congress of Racial Equality in the summer of 1964. He attended law school at New York University and while attending law school worked for the New York Civil Liberties Union as an investigator. Upon graduating from law school in 1967, he applied for membership in the New York State Bar Association and was eventually admitted. He was employed as a staff attorney with the Center on Social Welfare Policy and Law in New York City. He was suspended from that position. In 1970 he was awarded a Reginald Heber Smith Fellowship which took him to Michigan Legal Services in Detroit, Michigan. He remained there until he took a sabbatical so that he could complete a Legal Services Corporation Research Fellowship in 1979 and 1980, which was located at the University of North Carolina at Chapel Hill. He could have returned to his employment at Michigan Legal Services but instead sued that entity. He also sued Pennsylvania Legal Services, Legal Services of North Carolina, and the Mental Health Law Project of the District of Columbia for alleged age discrimination in hiring. From December 1980 until 1984 he was employed as associate counsel for the Puerto Rican Legal Defense and Education Fund in New York and Connecticut. He left there because of a "labor dispute." In March of 1985 he was hired as director of the Greater Orlando Area Legal Services (GOALS). He was fired in 1986. He sued GOALS, and obtained a financial settlement. Subsequently he applied for jobs with Broward County Legal Services and Central Florida Legal Services. When he was turned down for those jobs, he sued both entities based on age discrimination. The action against Central Florida Legal Services ended in 1999 or 2000 with a confidential settlement involving the payment of money to Attorney Kaimowitz. At some point he also entered into a confidential settlement with Broward County Legal Services. Attorney Kaimowitz claims that the suits he filed against various legal services programs were based on his personal mission to reform the hiring practices of legal services programs, and he avers that he has been on that mission since 1980. Although he claims to have instituted these suits for altruistic motives, many of them resulted in monetary settlements that benefited him personally. None of these suits were tried to the point that a verdict resulted. After being fired by GOALS he obtained a master's in communications from the University of Central Florida in 1988. While attending school he worked as a journalist for the "Orlando Weekly," a publication targeted to African-Americans in the Orlando area. Subsequently Attorney Kaimowitz represented African- Americans in civil rights actions, including employment discrimination in the Orlando area. He was in private practice of law at that time although he had no office. In 1989 or 1990 a court assessed fees against him for engaging in frivolous litigation. Attorney Kaimowitz moved to Gainesville because his domestic partner was seeking a Ph.D. at the University of Florida. From May 14, 1999, until February 7, 2002, he worked for Alachua County as an investigator into citizen complaints of discrimination in housing and public accommodation. He was terminated from that job because of accusations of "serious misconduct." He claimed his discharge from this job was in retaliation for whistle blowing. He sued, and received a monetary settlement. He subsequently and unsuccessfully sought employment with the City of Gainesville, the University of Florida, and with the State of Florida. He had a dispute with the University of Florida based on the University's failure to publish written material that he submitted. He filed suits pro se based on age discrimination against Gainesville for failing to hire him and against the University of Florida and the Florida Board of Regents because of the publication dispute and because they refused to hire him. The suit against the Board of Regents was settled by a monetary payment to him of a confidential sum, according to Attorney Kaimowitz. In 1997, Judge Maurice Paul, a U. S. District Judge, entered an order forbidding Attorney Kaimowitz from filing pro se lawsuits in his court. Prior to 2003, Attorney Kaimowitz was disciplined by the Florida Supreme Court on two occasions. A Florida Bar report dated January 29, 2002, reported a finding on January 3, 2002, of professional misconduct. He was reprimanded for making a statement he knew to be false or with reckless disregard as to its truth or falsity concerning the integrity of a judge. He had been previously reprimanded by the Florida Supreme Court in 1998. Attorney Kaimowitz is proud that he has filed countless motions to disqualify judges. He claims he has succeeded in disqualifying, at one time or another, every judge in the Middle District of Florida, and several in the Eighth Judicial Circuit, which includes the Gainesville area. Attorney Kaimowitz agrees with the notion that he is, "the most well-known offensive personality in the Eighth Judicial Circuit," but asserts that this reputation was not fully achieved until 2004. This self-characterization is accepted based on the evidence adduced in this case. Attorney Kaimowitz suffered a hearing loss and began using hearing aids in 1992. It is found as a fact that he hears well enough to try a case, which was demonstrated in this case. At his request, counsel table was moved close to the bench. He subsequently announced that this accommodated his hearing deficiency. Attorney Kaimowitz was arrested for causing a disturbance in a Gainesville City Commission meeting in 2002. He is very proud of being arrested. On November 16, 2004, Eighth Judicial Circuit Judge Larry Gibbs Turner entered an order entitled Sentence on Judgment of Guilty of Direct and In-Direct Criminal Contempt, following a Judgment of Guilty of eight separate allegations of direct and indirect criminal contempt on October 13, 2004. This Order recited the following language: A review of the fifteen (15) volumes of the record in this cause clearly demonstrates that throughout these proceedings Mr. Kaimowitz carefully, willfully, and with calculation and premeditation abused his status as a lawyer/pro se litigant in filing repetitious and frivolous pleadings including, but not limited to, his repeated motions to recuse every judge associated with this case. Mr. Kaimowitz's most recent effort to recuse this undersigned judge was framed by his GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AND/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA AND AFFIDAVIT/CERTIFICATE WITH GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AN/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA. The motions/applications seeking recusal of each of the judges in this cause provide ample evidence of Mr. Kaimowitz's "style" of litigation in which he intentionally confuses, obfuscates, insults, defames, and makes scurrilous and unsubstantiated claims against parties, judges, witnesses, and others related and unrelated to the litigation. Further evidence is found in his VERIFIED MOTION FOR ARREST OF JUDGMENT BASED ON FRAUD COMMITTED UPON THIS COURT. Beginning at page 10 of that motion Mr. Kaimowitz claims that he ". . . has learned that repeated motions for recusal as evidence pours in eventually tends to work in his favor. For instance, after Judge Jopling finally recused himself, Kaimowitz had little difficulty resolving at mediation the underlying cases. They were assigned to Judge Turner at the time, but all he did was agree to the parties' stipulated willingness to proceed to mediation." Over the following several pages, Mr. Kaimowitz recites his history of recusal litigation in other state and federal cases. Judge Turner permanently enjoined Attorney Kaimowitz from filing further pro se litigation in the county and circuit courts of the Eighth Judicial Circuit. Although Judge Turner based his finding on Kaimowitz v. The Florida Board of Regents, Eighth Circuit Case No. 01-1996-CA-3260, he noted a number of cases involving Attorney Kaimowitz going back to 1996, including Eighth Judicial Circuit Case No. 01-2003-CA-2400-A, Gabe Kaimowitz v. Gainesville, Florida, and the Gainesville Sun, in which Judge Toby S. Monaco outlined abuses as a basis for his dismissal of Attorney Kaimowitz's Complaint with prejudice. The Respondent and Its Executive Director, Allison Thompson TRLS exists pursuant to Title 42 U. S. Code, § 2996 et seq. It is governed, inter alia, by Title 45, Code of Federal Regulations, § 1600.1, et seq. Its mission is to provide equal access to the system of justice so that those who are otherwise unable to afford adequate counsel may have high quality legal assistance to seek redress of grievances. It receives funding from the Legal Services Corporation in Washington, D.C., the Florida Bar Foundation, United Way, and other local and national government sources. TRLS is headquartered in Gainesville, Florida, and serves eleven mostly rural counties surrounding Alachua County, as well as Alachua County. It works with other volunteer agencies and with pro bono attorneys. It is essential to the success of TRLS that it maintain cordial relations with the community and the bar. Ms. Thompson hires all of the TRLS management team. TRLS does not use an application form when seeking applicants for jobs. Advertisements for positions solicit resumes. TRLS does not maintain a "pool" of applicants for any particular job. The number of employees at TRLS fluctuates depending on funding. The racial, age, and gender composition of TRLS personnel from May 2003 to May 2004, was as follows: Whites 20 Blacks 19 Asian 2 Hispanic 2 Male 11 Female 32 Of the above, the oldest was born in 1947. Three of the above were born in that year. Since 2003, new attorney hires, (including law school graduates not admitted) were as follows: Whites 10 Blacks 6 Asian 0 Hispanic 1 Male 4 Female 13 Of these, the oldest was born in 1958. TRLS has hired, since Ms. Thompson has been Executive Director, at least one person who was over the age of 70. TRLS does not have quotas or a diversity plan that requires certain races, genders, or ages to be given preference in hiring. TRLS is guided in this regard by Title 45, Code of Federal Regulations, § 1616.1, et seq. Specifically, Title 45, Code of Federal Regulations, § 1616.6 requires that TRLS adopt, "employment qualifications, procedures, and policies that meet the requirements of applicable laws prohibiting discrimination in employment, and shall take affirmative action to insure equal employment opportunity." The hiring record of TRLS, taken as a whole, demonstrates compliance with this requirement and does not indicate any pattern of discrimination. Ms. Thompson has been the executive director of TRLS since 1996. She is an African-American. She graduated from the University of Florida Law School and was admitted to the Florida Bar in 1974. She has extensive experience in the delivery of legal services to the poor. She worked for Tampa Legal Services beginning in 1973. It became a Legal Services Corporation program while she was employed there. She began working for Rhode Island Legal Services in 1976, practicing primarily family law. Ms. Thompson worked for Philadelphia Legal Services for five years and then, beginning in 1982, worked for a number of years in the U. S. Virgin Islands where she was litigation director. She was appointed Executive Director of TRLS in December of 1996. Job applications with TRLS in 2003 and earlier Attorney Kaimowitz applied for a managing attorney position with TRLS in 1997. Ms. Thompson interviewed him and determined that he was an "interesting person" but was not the type of person who would work well with others. She concluded he would be difficult to manage. She noted that if she had a job which did not require working well with others, she might wish to hire him in the future. Attorney Kaimowitz applied for a job as a staff attorney in 2001. He received a letter dated May 13, 2001, from Ms. Thompson, advising him that he was not selected and that she would keep his resume on file. Attorney Kaimowitz responded to this letter with a letter dated August 15, 2001, that pointed out two settlements he had received from legal services programs in Florida based on their alleged discrimination against him because of his age. He also discussed his whistle blowing with regard to GOALS and stated, "I include this information to indicate that when there really is a will, there is a way." Ms. Thompson took this as a threat. Attorney Kaimowitz applied for a job as a managing attorney in the TRLS Lake City office in 2002. He was not interviewed for that position. TRLS advertised for a fair housing attorney and a fair housing testing coordinator in various publications during April 2003. Attorney Kaimowitz applied for both of these jobs. He interviewed with Ms. Thompson and Mary O'Rourke, a staff attorney with TRLS, on May 30, 2003. Ms. Thompson asked Ms. O'Rourke to sit in as a witness to the interview because she was concerned that Attorney Kaimowitz would sue TRLS if she did not hire him. Initially, Attorney Kaimowitz expressed an interest in both the fair housing attorney job and the fair housing testing coordinator job. However, during the interview Attorney Kaimowitz stated that he did not wish to apply for the fair housing attorney position, but wished to be considered only as an applicant for the fair housing testing coordinator position. The occupant of this position was expected to supervise individuals who would determine if discrimination in housing was occurring. Attorney Kaimowitz claimed during his testimony that he told Ms. Thompson and Ms. O'Rourke that his ability to hear was impaired. He claimed he told them he required an accommodation for his hearing loss. He stated that he had a discussion with Ms. O'Rourke during the interview about an electronic system where a court reporter would record words spoken, and the words would be displayed on a monitor so that he could read what was being said. Attorney Kaimowitz appeared at the interview wearing one hearing aid. Ms. Thompson said that Attorney Kaimowitz said that one of his hearing aids was "in the shop." Ms. Thompson testified that he announced during the interview that his hearing loss was corrected by his hearing aids. Ms. Thompson said it was clear that he had no difficulty in understanding her with only one hearing aid. In no event did she perceive him as being hearing impaired. Ms. O'Rourke stated that the conversation claimed by Attorney Kaimowitz regarding an electronic monitor system to aid hearing never occurred. Based on Ms. O'Rourke's testimony, Ms. Thompson's testimony, and Attorney Kaimowitz's credibility, which is addressed in detail below, it is found that at the time of this interview Attorney Kaimowitz did not claim the need for an accommodation based on an alleged hearing impairment and he was not perceived as being hearing impaired. Ms. Thompson wanted employees at TRLS who would maintain a good relationship with the local bar. Even though the housing testing coordinator position was not a job requiring the incumbent to be a licensed attorney, it is not helpful for TRLS to have employees who are at odds with the local bar or community. She was looking for an employee who was a team player, who could get along with the other employees at TRLS, the local bar, and with persons in the community. She also wanted someone with good references. The fair housing testing coordinator required training in Jacksonville. Ms. Thompson believed Attorney Kaimowitz could not be trained because, "He already knew everything." She believed he couldn't take orders. She was troubled because he had no references from people who had supervised him. Although attorneys who have their own practice cannot give references of supervisors, they usually can give a judge or judges as a reference, but Attorney Kaimowitz did not provide any judges as references. Attorney Kaimowitz provided a co-plaintiff in a lawsuit and a professor named Joe Little as references. Ms. Thompson called Professor Little but did not feel it would be worthwhile calling his co-plaintiff, who was embroiled in a lawsuit at the time. She was concerned because Attorney Kaimowitz told her, with regard to references, "everyone in Gainesville was suspect." Moreover, he did not provide any references from his time as director of GOALS, which was a job where he had a supervisor who could comment on his work. Ms. Thompson was aware of Attorney Kaimowitz's arrest during a Gainesville City Commission meeting, and was aware of at least one of his Florida Supreme Court reprimands at the time she decided not to hire him. She was also aware that he would occasionally write in "black English," and she found that offensive. She believed him to be a disruptive force. She stated she would not hire him if he was "the last man on earth." She stated that an equally obnoxious black man would often apply for positions at TRLS, and she would not hire him for the same general reasons that she would not hire Attorney Kaimowitz. Ms. Thompson thought Attorney Kaimowitz would be a liability to her organization. She noted that, "He makes comments without any basis. He makes sweeping comments when he knows nothing. He doesn't even check." Brenda Scafadi was eventually hired for the housing testing coordinator. She was, at the time, a 50-year-old white woman who had a disability in the form of fibromyalgia. She was not an attorney. She was hired because she was perceived to be a team player and she had good references. Ms. Scafadi resigned after about eight months and was replaced by Steve Malu, a 50-year-old Nigerian, who also was not an attorney. Attorney Kaimowitz was a person Ms. Thompson had personally known for about six years at the time of the interview. She also knew about him from his letters to the "Gainesville Sun" and numerous e-mails he sent to her and to others. She was aware of his reputation in the community. She refused to hire him because she did not believe he would be a good employee. Neither his age, nor his race, nor his claimed hearing loss was a factor in her decision. Attorney Kaimowitz received a letter from Ms. Thompson dated July 22, 2003, advising him that she had, "decided to offer the position to different applicants who I thought would be more appropriate for our needs." The Americorps positions On August 1, 2004, Americorps positions in Gainesville and Jacksonville were advertised. These jobs were targeted at inexperienced attorneys and paid "living expenses" and a promise of scholarship help rather than a salary. During the evening of August 2, 2004, Ms. Thompson offered testimony before the Gainesville City Commission. After her testimony she departed, although the meeting continued. After exiting the building, she heard footsteps behind her and turned to see Attorney Kaimowitz following her. There were no other people in the area. He stated that he wanted to "mediate our situation" but was informed by Ms. Thompson that there was nothing to mediate because she did not discriminate. She told him she was tired of him making disparaging comments about her program and her staff. Attorney Kaimowitz expressed an interest in the Americorps positions in an e-mail to Ms. Thompson dated August 5, 2004, which was in the nature of a resume. In this letter he said, "I certainly will refrain from any action I suggested I might take through this month of August, so that we can see if we can reach an accommodation in that time." Ms. Thompson regarded this as a threat. Ms. Thompson did not interview him for the Americorps positions because the "resume" e-mail of August 5, 2004, did not match the requirements of the job. Three of the positions were designed for attorneys TRLS could train so that they could recruit students from the law school to assist in the delivery of services. The other two positions required no litigation skills and were designed to provide limited legal services over the telephone to a large volume of clients. Another reason Ms. Thompson found Attorney Kaimowitz to be unsuitable for this job were statements he made to her, such as claiming she hired an "incompetent black male." She had seen, and was familiar with, another widely circulated writing in which he stated, "The real 'piece of work' is Three Rivers Legal Services, and their foolish young attorney of color Glorimil Walker, everyone's favorite minority attorney since she speaks her mind--even if it is against the adults and children at University Centre." The Americorps attorneys hired during this period, instead of Attorney Kaimowitz, included Shelly E. Beach, who was a 26-year-old white female, Melissa B. Long, a 29-year-old black female, and Julie A. Santioni, a 26-year-old white female. Ms. Thompson, and TRLS did not discriminate or retaliate against Mr. Kaimowitz in refusing him an Americorps position. He was not hired because the job was unsuitable for him and because he was unsuitable for employment at TRLS. Retaliation Attorney Kaimowitz's original claim of retaliation was based on his view that TRLS would not hire him because he had sued Central Florida Legal Services and that Ms. Thompson knew and would not hire him because of that lawsuit. Ms. Thompson denied this. Attorney Kaimowitz's second claim of retaliation was based on the complaint to the Commission concerning the refusal of TRLS to hire him for the fair housing testing coordinator position. For reasons that are abundantly clear herein, there were numerous reasons for not hiring him other than retaliation. Attorney Kaimowitz's Credibility Attorney Kaimowitz claims that he applied for the fair housing attorney position as well as the fair housing testing coordinator. Both Ms. Thompson and Ms. O'Rourke stated that at his interview he said he wished to apply only for the fair housing testing coordinator. Attorney Kaimowitz also claims that he informed Ms. Thompson and Ms. O'Rourke at his interview that he was hard of hearing and required an accommodation. Ms. Thompson and Ms. O'Rourke both said that during the interview he asserted that any hearing problems he had were resolved by hearing aids. Attorney Kaimowitz has demonstrated through his pleadings and actions in court, and before this Administrative Law Judge, that he has a low regard for the truth. As an example, he claims to believe in the equality of mankind, but during his examination of Ms. Thompson, he threw a document at her and stated that, "And then you could never find discrimination unless I don't want a nigger in here." As a consequence all issues involving credibility are resolved against Attorney Kaimowitz. That being the case, it is found by a preponderance of the evidence that he did not seek the fair housing attorney position in 2003 and that he did not assert during the interview that he was hard of hearing and thus required an accommodation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petitions be dismissed. DONE AND ENTERED this 1st day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carla D. Franklin, Esquire 4809 Southwest 91st Terrace Gainesville, Florida 32608 Gabe H. Kaimowitz, Esquire Post Office Box 140119 Gainesville, Florida 32614-0119 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 21st day of August, 1996.
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on April 28, 1988, and issued him certificate number 86967. At all material times, the Miami-Dade Department of Corrections and Rehabilitation employed Petitioner as a correctional officer. At the time of this incident, Respondent worked at the Turner Guilford Knight Correctional Center (TGK). For December 20-21, 1999, Respondent reported to TGK for a shift that began at 10:30 p.m. on December 20 and ended at 6:30 a.m. on the next morning. Respondent's position was a unit manager of Unit K4-2. As the unit manager, Respondent was responsible for the care, custody, and control of all inmates in this unit. This responsibility included the duty of ensuring that all inmates were present and accounted for in the unit, and Respondent was required to conduct an inmate headcount and in- cell checks of all inmates. Correctional officers conducting in-cell checks document the time of their checks on a Visual Checks log. The purpose of the Visual Checks log is to inform the correctional officer's superior and other correctional officers that the officer entering the information in the log walked the entire unit at the time noted and visually checked all inmates housed in the unit. If, as is customary, the correctional officer found nothing amiss, he would enter "QRU" in the log, which informs his superior and other correctional officers that all was well in the unit at the time indicated for the check. During his shift of December 20-21, 1999, Respondent made seven entries in the Visual Checks log for his unit. The indicated times were hourly, on the hour, from 11:00 p.m. on December 20 through 6:00 a.m. on December 21. For each entry, Respondent recorded a headcount and wrote in the Visual Checks log, "VISUAL CK UNIT/INMATES ALL QRU." At 9:15 a.m. on December 21, 1999, another correctional officer discovered that inmate Carlos Nevis in room 552, which is in the unit for which Respondent was responsible, had hanged himself to death. The question in this case is whether Mr. Nevis hanged himself on Respondent's watch. If so, given the close proximity of the hanging body to the door window through which an officer makes a visual inspection of the cell, the inference readily follows that Respondent did not conduct a visual check of Mr. Nevis's cell, as Respondent indicated he had done on the Visual Checks log. When the body of Mr. Nevis was found, it was already displaying the effects of rigor mortis. The one witness who had indicated otherwise retreated from his earlier statement and, visibly uncomfortable, testified only that he could not recall if the body felt stiff or hard. Four other witnesses testified that the body was stiff to the touch when it was discovered. The time of death is contested by two expert witnesses. Petitioner relies on the Chief Medical Examiner for Miami-Dade County. He conducted an autopsy and found substantially digested food in Mr. Nevis's stomach. The food appeared to be a green vegetable and red beans, as well as a tan fluid of less than one cup in volume. The food was from dinner on the evening of December 20, not the 1:00 a.m. breakfast on December 21, which had no vegetables. Considering the witness reports of body stiffness, Petitioner's expert concluded that Mr. Nevis died not much after 4:00 a.m.--and well prior to 6:00 a.m.--on December 21. The expert also noted that the fire rescue squad declared Mr. Nevis dead at 9:22 a.m.--two minutes after they arrived at the scene-- and the absence of any indication of chest compressions, bagging, or ventilation is consistent with the finding that Mr. Nevis had been dead several hours by the time his body was discovered at 9:15 a.m. Respondent's expert has served as the regional medical examiner, Deputy Chief Medical Examiner, and Medical Examiner for Dade County since 1972 and is now a forensic pathologist consultant. However, Respondent's expert could not adequately account for the partially digested food found in Mr. Nevis's stomach. Respondent's expert tried to explain that emotional stress would slow digestion, but Petitioner's expert countered convincingly that many persons who have decided to end their lives find peace in their final hours--a premise that would be consistent with the fact that Mr. Nevis had the presence of mind to prepare a final note to his girlfriend and tuck a Bible into his waistband prior to hanging himself. Even Respondent's expert had trouble establishing a time of death considerably past 6:00 a.m. Called as a witness in his own case, Respondent testified that he started the 6:00 a.m. check at 5:45 a.m., and a visual check of the entire 48-room unit takes ten to fifteen minutes to complete. Respondent thus testified that he saw Mr. Nevis alive a few minutes before 6:00 a.m. Petitioner has proved by clear and convincing evidence that Respondent falsely noted in the Visual Checks log that he had checked Mr. Nevis's room at 6:00 a.m., or even 5:45 a.m. Despite his testimony to the contrary at the hearing, Respondent never checked the room at the round that he claimed to have performed at, or shortly before, 6:00 a.m. on December 21.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's certificate. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. ___ ROBERT E. MEALE 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 23rd day of April, 2003. COPIES FURNISHED: Rod Caswell, Program Director Department of Law Enforcement Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey Slesnick & Casey 10680 Northwest 25th Street, Suite 202 Miami, Florida 33172-2108
