The Issue Whether or not the Respondent, Anita J. Shear, R.N., is entitled to have her terminated license No. 27650-2 reinstated, in view of the alleged allegations that the Respondent has been found guilty of the conviction of a felony in the course of the State of Florida. (See Section 464.151(1)(b) and Section 464.21(1) Florida Statutes.)
Findings Of Fact This cause comes on for consideration based upon the Administrative Complaint presented by the Petitioner, Florida State Board of Nursing, against the Respondent, Anita J. Shear, R.N. The case is presented as Docket No. FSBN 78-70. The Administrative Complaint seeks to deny the re-registration of the terminated license of Anita J. Shear, who held license No. 27650-2 (terminated). The alleged grounds for the denial of the re-registration are based upon the alleged plea of guilty to the felony charges of unlawfully obtaining services, goods, wares or other things of value by means of a worthless check or draft in the amount of $187.00 in a case in the Circuit Court in and for Dade County, Florida, Case No. 77-2285. The allegation is that the Respondent entered the plea on or about March 14, 1978, and was adjudicated guilty of the felony by the Court and sentenced to serve a term of one year in jail upon certain terms and conditions. There is an additional ground stated in the Administrative Complaint for denying the re-registration, which is to the effect that the Respondent on or about March 14, 1978, entered pleas of guilty to the felony charges of uttering a forged instrument (three counts); grand larceny (three counts) and intentionally receiving, retaining, disposing or aiding in the concealment of stolen property, well knowing the same to be stolen (three counts). This series of pleas were allegedly presented in the Circuit Court in and for Dade County, Florida, in Case No. 77-2304, for which the Respondent was allegedly adjudicated guilty of all those aforementioned felonies in Case No. 77-2304. At a time prior to March 31, 1978, the Respondent, Anita J. Shear, R.N., was a holder of license No. 27650-2, held with the Florida State Board of Nursing. That license was to practice as a Registered Nurse in the State of Florida. The Respondent, prior to March 31, 1978, had failed to timely renew her license and had terminated according to the terms and conditions of Section 404.151(1)(b), Florida Statutes. The timely renewal spoken of meant that the Respondent had failed to renew her license before the expiration date of the current license under which she was allowed to practice her profession in the State of Florida. On March 31, 1978, the petitioner received an application for reinstatement of the Respondent's license, filed by the Respondent. The Petitioner failed to re-register the Respondent for reasons as set forth in the summarization of the Administrative Complaint. The Respondent was advised of this denial of re-registration on May 1, 1978. This in turn led to the consideration of the case by formal hearing with the State of Florida, Division of Administrative Hearings. The facts revealed that the Respondent, Anita J. Shear, in the Circuit Court in and for Dade County, Florida, in Case No. 77- 2285, entered a plea of guilty to unlawfully obtaining services, goods, wares or other things of value by means of a worthless check or draft in the amount of $187.00, for which she was adjudged guilty and sentenced to a term of one year in the Dade County Jail with the provision that after nine months served, the remaining three months should be stayed and withheld and the Respondent be placed on probation for a period of two years, subject to the terms and conditions of the Court. This plea and sentence were entered on March 14, 1978. This offense for which the Respondent entered her plea is a felony under the laws of the State of Florida, in particular, Section 832.05(3), Florida Statutes. On March 14, 1978, in the Circuit Court in and for Dade County, Florida, in Case No. 77-2304, the Respondent entered a plea of guilty to uttering a forged instrument (three counts), felonies under the provisions of Section 831.02, Florida Statutes; grand larceny (three counts), felonies under the provisions of Section 812.021, Florida Statutes, and intentionally receiving, retaining, disposing or aiding in the concealment of stolen property, well knowing the same to be stolen (three counts). The latter plea was made in accordance with the provisions of Section 812.031, Florida Statutes, but it is unclear from the evidence presented whether or not those pleas were to the misdemeanor offenses of receiving stolen property or to the felony offenses. The Respondent was adjudicated guilty of those offenses found in Case No. 77- 2304 and was given a period of probation of two and one-half years beginning at the expiration of the sentence in Case No. 77-2285. A statement of Court action in cases Nos. 77-2285 and 77-2304 may he found in the Petitioner's Composite Exhibit No. 1 admitted into evidence. After discovering the existence of the felony conviction stated above, placed against the Respondent, the Petitioner has denied the Respondent's application for re-registration. The Petitioner may deny the license to the Respondent in view of the felony convictions under the authority established in Section 464.21, Florida Statutes, which states: "464.21 Disciplinary proceedings.-- GROUNDS FOR DISCIPLINE.--The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the hoard of: * * * "Conviction of a felony in the courts of this state . . ." Therefore, the Petitioner was correct in denying the Respondent's application for re-registration as a Registered Nurse.
Recommendation It is recommended that the Respondent, Anita J. Shear, R.N., have her application to re-register as a licensed Registered Nurse in the State of Florida, DENIED. DONE and ENTERED this 3rd day of January, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Anita J. Shear Post Office Box 215 Buena Vista Station Miami, Florida 33137 Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator Department of Professional and Occupational Regulation, Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue The Administrative complaint dated September 19, 1994, alleges that Respondent, a licensed class "D" security officer, violated section 493.6118(1)(j), F.S. by committing a battery on or about January 28, 1994. The issue is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact At all times relevant to this action, Respondent, Ivan Machiz, was licensed as a class "D" security officer, license number D91-19035, by the Department of State, Division of Licensing, pursuant to chapter 493, F.S. The proceeding at issue is the only disciplinary action in evidence against Mr. Machiz' license. On January 28, 1994, Mr. Machiz visited Jameryl Curley at her apartment in Tampa, Florida. Mr. Machiz and Ms. Curley had been roommates. Mr. Machiz sought to recover his claimed possessions, including some chairs and a French racing bicycle. Ms. Curley told Mr. Machiz she had sold the items as payment for some delinquent bills and that he was not entitled to take them. He moved to take the bicycle and she hung on to it. The couple argued and struggled over the bicycle. In the struggle Mr. Machiz grabbed Ms. Curley and pinned her left arm behind her back, twisting it and causing her to cry for help. Benjamin Dobrin, who lived with his brother in the next door apartment and shared a back porch with Ms. Curley, answered the call and found Mr. Machiz on top of Ms. Curley, forcing her face-first into a couch or futon, and twisting her arm behind her back. Mr. Dobrin immediately returned to his apartment and called "911" for help. He then went back to Ms. Curley's apartment. By then, she was up and was holding on to the bicycle and Mr. Machiz was dragging it with her. She was crying and yelling, "Help, you're hurting me. Stop!" Mr. Dobrin and his brother stopped the bicycle and Mr. Machiz left. Deputy Chris Williams arrived shortly thereafter and found Ms. Curley upset and hyperventilating. After interviewing the Dobrins, Ms. Curley, and then Mr. Machiz (at his apartment in the next building), Deputy Williams arrested Mr. Machiz. He admitted that he put Ms. Curley in a wristlock because she was struggling against his attempts to recover what he claimed was his. He was not protecting himself or another from physical harm. At the criminal trial on one count of a battery charge, on March 24, 2994, County Judge Cynthia A. Holloway heard the testimony of the Deputy, Mr. Dobrin, Ms. Curley, and Mr. Machiz, and admonished that Mr. Machiz had no right to "self-help" recovery of his property, to go to someone's apartment to remove property over objection, and to "pulverize anybody to get that property back". (Respondent's exhibit #1, p. 20) The court withheld adjudication of guilt, and placed Mr. Machiz on six months probation, with the provision for termination after four months on the condition that he perform 25 hours of community service, pay court costs and write a letter of apology to Ms. Curley.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its Final Order finding that Ivan Drew Machiz violated section 493.6118(1)(j), F.S., and imposing a penalty of $500 fine. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1995. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Richard R. Whidden, Jr., Esquire Dept. of State/Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Ivan Drew Machiz 481 Hardendorf Avenue Atlanta, Georgia 30307
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2002),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(c), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Odom was a correctional officer working as a sergeant at Century Correctional Institution (Century) in Century, Florida. Jarl Johnson (Johnson) is a correctional officer who was employed at Century while Odom was employed there. Johnson went to the dormitory where Odom was stationed to check equipment. He advised Odom that he would do the head count of the inmates, but Odom indicated that he would do the head count instead of Johnson. Odom took two inmates, who were in the officers' station, with him to do the head count, and the inmates carried flashlights with them while doing the head count. Inmates are prohibited from doing head counts and carrying flashlights. Vera Elliot (Elliot) is a correctional officer, who is employed at Century. On February 14, 2003, she was working a double shift. One of her shifts that day was the same shift on which Odom was working. Elliot observed Odom and two inmates do a head count of the inmates. The two inmates came into the officers' station, while Odom was present. At that time, no inmates were allowed in the officers' station. On that same evening, Elliot saw Odom give a white box containing food to the two inmates. Correctional officers are not allowed to give food to inmates. Gregory Gilliard (Gilliard) is a correctional officer, who was employed at Century while Odom was employed at Century. Gilliard observed an inmate and Odom in the laundry room directly behind the officers' station. The inmate was polishing Odom's shoes. Gilliard also observed another inmate in the officers' station. The doors to the laundry room were open, making the dormitory accessible, which is a breach of security. On May 8, 2003, Jeffrey R. Brooker (Brooker), a correctional investigator for the Office of the Inspector General of the Department of Corrections, interviewed Odom concerning complaints against staff at Century. While under oath, Odom told Brooker that he never allowed inmates to carry flashlights, never gave food to inmates, never allowed inmates in the officers' station, and never allowed an inmate to polish his shoes. These sworn statements were false. Based on the statements given by Odom to Brooker, it is found that Odom knew that his statements were not true. The Commission alleged in the Administrative Complaint that Odom used excessive or unnecessary force on an inmate. The only evidence presented concerning these allegations was hearsay. Subsection 120.57(1)(c), Florida Statutes (2005), provides: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Therefore, no finding is made that excessive or unnecessary force was used by Odom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Richard L. Odom violated Subsection 943.13(7), Florida Statutes, and revoking his certification as a correctional officer. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 March, 2006.
Findings Of Fact Petitioner, Harvey Jackson, in an inmate at UCI and has been at all times pertinent hereto. During the month of September, 1986, consistent with the rules of DOC, Jackson had a list of individuals on file who he desired to be allowed to visit him at the institution. These included members of his family and his fiancee, Ms. Ann Alexander. On September 22, 1986, Ms. Alexander came to visit Jackson at UCI. According to the routine procedure followed for the preparation of visitors' entrance into the Visitor's Park area, Ms. Alexander's purse was searched and she was subject to a pat search prior to being allowed into the secure area. During the search, it was determined she had $50.00 in U.S. currency in her possession and she was permitted to take that money into the Visitor's Park, leaving her purse at the waiting area. While Jackson and Ms. Alexander were together in the Visitor's Park, she purchased two cartons of cigarettes at the canteen and two orange drinks. The cartons of cigarettes were $12.00 each and the drinks were 35 each. Therefore, she spent approximately $24.70 of the $50.00 she brought in. Because she did not have a purse, she claimed later, upon questioning, that she put the change in the brown paper bag she got with the drinks and when she disposed of the bag in a trash can, inadvertently threw out the money as well. When she left the Visitor's Park area, she was subject again to a pat search and requested to indicate how much money she had. At that time, it was determined she had only $3.00 in her possession. According to corrections personnel who interviewed her, she gave several different stories as to what happened to the money she could not account for. Though both Ms. Alexander and Jackson stated she bought him two cartons of cigarettes, when he was searched prior to leaving the Visitor's Park, he had only one carton with him. The strip search conducted of him at that time also failed to reveal any money in his possession. Ms. Alexander was asked to go back into the Visitor's Park and look through the trash cans to try to find the money, and was accompanied by a guard. Because of the heat, however, it was an odious task and she admits her search of six or seven cans was not thorough. Unfortunately, she was unable to locate the money. As a result of this missing money, an incident report, (IR) was prepared. Ms. Alexander was not detained but was orally informed that her visiting privileges might be suspended and Jackson was allowed to return to his quarters. The IR merely outlined the information cited above but did not draw any conclusions as to what happened to the money. Mr. Davis, the corrections supervisor who was in charge of the corrections shift, concluded that Ms. Alexander disregarded the department's rules and regulations and recommended that her visiting privileges be revoked for an indefinite period. This IR was processed through channels to Mr. Cunningham, the Classification Supervisor, who under the provisions of Section 33-5.007(5), F.A.C., had the authority, in the absence of the Superintendent, to approve the suspension. He did so, and made sure that the Superintendent was informed. Thereafter, on September 29, 1986, Mr. K. W. Snow, who worked for Mr. Cunningham, on behalf of the Superintendent, Mr. Barton, sent a letter to Ms. Alexander at her home address on file at the institution, indicating that her visiting privileges were suspended indefinitely beginning that date and would be reinstated on October 31, 1986, one month later. Notwithstanding that inconsistency regarding the length of the suspension, the practice at UCI, in the case of indefinite suspensions, is to reconsider the suspension on receipt of a request for reinstatement. In the case of a suspension for a definite term, they will reinstate upon request at the end of the suspension period. On the afternoon of September 26, 1986, several days prior to the dispatch of the suspension letter to Ms. Alexander, inmate Jackson was called to Mr. Snow's office where he was told that Ms. Alexander's visiting privileges were to be suspended for 30 days. At that time, he was advised that the basis for the suspension was her inability to account for the money she brought into the Visitor's Park on September 22. Though he requested a copy of the IR at that time, Jackson was not given a copy of it until in response to a discovery request after the filing of the rule challenge petition. Jackson was not advised of any opportunity either he or Ms. Alexander might have for a hearing on the matter prior to the suspension, or any appeal rights. Thereafter, Jackson wrote to Mr. Snow asking that he be notified of the suspension in writing, but this request was denied. The September 29, 1986 letter was not received by Ms. Alexander but was returned undelivered because of an erroneous address. On October 1, 1986, however, she wrote to Mr. Cunningham, having been advised by Jackson of the suspension, and the address on her stationery was used to again send her a letter of notification. This second letter was not returned. In her letter, Ms. Alexander explained her reasons for taking so much money into the Visitor's Park, and what she had done with a part of it. She also outlined her efforts to find the extra money. These explanations were not credited by the institution officials, however. Ms. Alexander's suspension has had a bad effect on Jackson, he claims. He felt frustrated and considered that his ability to be heard by the authorities was unnecessarily thwarted. He is of the opinion that the suspension was unfair because neither he nor his fiancee had broken any rules, and neither of them was given any opportunity to explain to the decision maker what had happened other than in writing and after the action was taken. As a result of the suspension, which has now expired, he missed two separate visits from his fiancee. It should be noted, however, that Ms. Alexander's suspension did not place any limits on visits by the other 7 or 8 people on his visitor's list. This suspension action has been utilized frequently as to other visitors as well as Ms. Alexander. Ms. Decker, for example, on September 29, 1986, was notified of the suspension of her visiting privileges on the basis that she had allegedly written a threatening letter to an official at the institution. She found out about her suspension through a phone call from her inmate fiancee. Neither she nor he, initially, was told of the reason for her suspension, and she was given no opportunity to rebut the allegations against her prior to the suspension action. Subsequent to the suspension, she was able to clarify the situation and her visiting privileges have been reinstated, albeit on less convenient days than she had previously. She believes this change in days was intended as punishment, but there is no evidence of this. Ms. Decker denies ever having been told that she could only spend $25.00 in the canteen as is alleged in Ms. Alexander's letter. In fact, there is no rule or policy limiting the amount that visitors may spend in the canteen nor is there a rule or policy which limits inmates to no more than one carton of cigarettes at a time. Mr. Jackson complains of the fact that neither he nor Ms. Alexander was afforded a hearing prior to the imposition of the suspension. There is no provision in the rule for a hearing prior to suspension in this type of case. This suspension was not intended as punishment for improper behavior by Jackson, but more a means of correcting an unauthorized situation and avoiding a security problem. Officials at UCI interpret the provisions of paragraph 33-5.007(5), F.A.C., as permitting the removal of a visitor from the visiting list for criminal activity, for a serious rule violation, for continuous infractions of visiting procedures, for security breaches, or a combination of those. While the instant situation is not considered to be criminal activity, a serious rule violation, or a continuing infraction, it is considered to be a security breach and it was to correct this situation that the institution officials suspended Ms. Alexander. Final action on the issue of a suspension of visiting privileges based on the IR is, by the rule, to be taken by the Superintendent, or the Assistant Superintendent, Classification Supervisor, or the next senior officer present in the chain of command in the absence of the Superintendent. Here, while the suspension letter in question was signed by Mr. Snow, the assistant classification supervisor, and while the Superintendent, Mr. Barton, was present on the day the suspension letter was signed, the letter clearly shows that the action was taken in the name of the superintendent and the testimony of Mr. Cunningham established that it was done with his concurrence. There is nothing in the rule that requires that the inmate or the visitor be afforded a hearing prior to the action suspending visiting privileges. If an inmate feels that the action suspending the visiting privileges of an individual on his list is improper and he can show a direct effect on him as a result thereof, he may file a grievance. Though Jackson indicates he filed a grievance in this case, there is no evidence of it. The incident report in question related strictly to the activity of Ms. Alexander and the action was taken against her even though, in so doing, an adverse effect was felt by Mr. Jackson. No doubt had he desired to do so, he could have grieved that situation, but, as was stated above, there is no evidence that he did so. There is a difference between an IR, as was written here, and a disciplinary report, (DR), which was not involved in this case. A DR involves misconduct on the part of an inmate which may result in disciplinary action, including a suspension of visiting privileges. An IR is nothing more than a memorialization of an unusual incident which is to be brought to the attention of institution authorities. Whereas an inmate is entitled to a hearing before action is taken on the basis of a DR, no hearing is required when an IR is written. If the incident resulting in an IR also results in a DR, a hearing would be afforded the inmate based on the proposed disciplinary action, not on the memorialization in the IR. There is no doubt that the removal of visitors from an inmate's visitors list does have an adverse effect on the morale and possibly the well- being of the inmate involved. However, the action is normally taken on the basis of the conduct of the visitor, not the inmate, and if a decision is made to suspend the visiting privileges of the visitor, the direct effect is on that visitor with a secondary effect only on the innate. In the instant case, officials concluded that Ms. Alexander's inability to account for approximately $20.00 in currency constituted a breach of security which authorized and in fact dictated a need to curtail her entry into the institution for a period of time. There is no evidence that Jackson committed any offense or did anything improper and it is, indeed, unfortunate that he was forced to suffer the deprivation of not being visited by his fiancee for a period of time. Notwithstanding this, it is clear from the testimony of the numerous individuals involved in the investigation of this incident that the action taken under the terms of the rule to suspend Ms. Alexander's privilege to visit was not taken lightly and was based on a bona fide evaluation of a security risk to the institution.
