The Issue The issue is whether the certification as a correctional officer issued to Willie L. Tillman (Tillman) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Tillman is certified as a correctional officer by the Commission, having been issued certificate number C-3171 on October 7, 1977. At all times relevant to the charges, Tillman was employed by the Volusia County Department of Corrections (VCDC) as a correctional officer at the Daytona Beach Correctional Facility. In June of 1988, Tillman held the rank of corporal, a promotional rank. His chain of command ran from Sergeant (now Lieutenant) Fitts through Lieutenant (now Captain) Bolton, his shift commander. Tillman knew or should have known that he had a duty to immediately report any use of force against an inmate and to obtain medical attention for any inmate against whom force was used. This duty to immediately report such an incident and to seek medical attention for the inmate involved is important for the health of the inmate and for the protection of the correctional institution and correctional officer against unwarranted claims of injury. At all times material to these charges, the policy and rules of the VCDC, as taught to correctional officers, required that correctional officers avoid one-on-one physical confrontations with inmates and recommended that a correctional officer faced with a potentially hostile or aggressive inmate attempt to disengage himself from the confrontation, diffuse the threat through conversation if possible, and obtain assistance from other officers before approaching or making physical contact with the inmate. The only exception to this rule of disengagement is in the case of a sudden or spontaneous attack by an inmate. On June 22, 1988, Tillman, a very large and muscular man, was making a head count at about 11:00 p.m. Tillman thought that inmate George Hoover had squirted toothpaste on his back as he walked past Hoover's cell. Tillman told the officer who was working with him to open the cell. Tillman then entered the cell and struck Hoover in the jaw and face with a closed fist. Hoover fell on to his bunk. Tillman did not report the incident and he did not seek medical attention for Hoover. Tillman had no valid reason for his failure to report the incident and he was not excused from reporting the use of force that night before leaving the job site. Hoover requested medical attention, which brought the use of force to the attention of the VCDC. Hoover suffered a loosened tooth from being struck by Tillman. When confronted with the matter, Tillman said that he entered Hoover's cell to remove contraband, namely cups of water and coffee. Hoover assumed a boxing stance and Tillman struck him in response to that perceived aggression. Tillman's stories then and at hearing are simply unbelievable. The incident report that Tillman finally wrote said he removed contraband cups of water and coffee from the cell. The officer with Tillman that night never saw any cups removed. At hearing for the first time Tillman said that the contraband consisted of cups of urine and feces which added to the level of threat which he felt. Tillman's testimony in this regard is contrary to his own reports prepared in 1988 and is contrary to anything Tillman had said or reported before the hearing. As the trier of fact, the undersigned simply finds that Tillman was not truthful in his testimony on this and other matters. It is also not believed that Hoover, a small man weighing about 150 pounds, assumed an aggressive boxing stance with Tillman, a man about twice his size. From the evidence it can only be concluded that Tillman engaged in an unprovoked and unnecessary use of force by striking Hoover with his fist. Based on the rules, policies and procedures of the VCDC, Tillman should not have entered Hoover's cell in a one-on- one confrontation after Hoover squirted toothpaste on him. After he had entered the cell, Tillman should have withdrawn and disengaged from the situation to avoid a confrontation even if Hoover had assumed an aggressive stance. Finally, after the use of force occurred, Tillman should have reported it and should have sought medical attention for Hoover immediately following the incident and should not have left work that night without doing these things. Tillman was verbally counselled about the rules and policies related to disengagement and reporting of use of force. On October 14, 1988, while supervising a group of inmates returning from eating, Tillman became involved in a vocal argument with inmate William F. Elmore. Tillman repeatedly goaded Elmore to hit him, but Elmore attempted to withdraw from Tillman. Tillman hit Elmore in the jaw with his closed fist. Elmore attempted to walk away from Tillman, but Tillman pursued him and threw him up against a wall more than once. Elmore was between 5'7" and 5'10" and weighed between 165 and 180 pounds. Tillman claimed that Elmore approached him with raised hands in a semi-boxing stance. No other witness, either officer or inmate, mentioned any such aggressive approach or stance on the part of Elmore. One officer said that he thought that Elmore tried to kick Tillman. One inmate said that Elmore may have flinched or something, but that he did not see any aggressive posture or movement by Elmore. Tillman did not disengage or attempt to avoid the one- on-one confrontation with Elmore, even when Correctional Officer Zima called to Tillman to offer help. Instead, Tillman was aggressive and abrasive with Elmore. Tillman then over-reacted to the situation which he had provoked and used excessive force against Elmore. As a result of this incident, Tillman was recommended for termination, but he successfully appealed the termination and was instead suspended for ten days. Tillman was counseled that his interpretation of the use of force rules was erroneous and was told that when an inmate assumes an offensive posture such as a boxing stance, Tillman was not to strike the inmate. In the early morning of July 15, 1989, Tillman instructed Correctional Officer Trainee Anderson to open the cell door of inmate Michael P. Frascella, so that Frascella could clean up a mess he had made in and around his cell. Frascella was in an observation cell because of an earlier disturbance he had created. After cleaning up, Frascella was returning to his cell and noticed an apple on the desk. He reached for it and Tillman told him to put it back. Tillman then hit Frascella in the face with a closed fist. Frascella fell to the floor. Anderson heard the sound of the fall, looked over, and saw Frascella laying on the floor, glassy-eyed and bleeding from the mouth area. Tillman denies that he touched Frascella in any way and says he never saw Frascella on the floor or with blood on his face. This is why he says no use of force report was ever filed. Frascella's testimony is more credible regarding this incident than is that of Tillman. While it is clear that Frascella bears ill feelings toward Tillman because of the incident, his statements are more consistent with those of Anderson. Tillman clearly did not tell the truth regarding the incident with inmate Hoover and there is considerable doubt about his truthfulness regarding Elmore. There is no reason to believe that Tillman has been any more forthright about what happened with Frascella. Based on the demeanor and credibility of the witnesses, it is concluded that Frascella's version is the closest to the what actually happened that morning. Former inmate and trustee Dwight Jensen testified about an incident in which Tillman struck an inmate with no justification. While it cannot be determined whether that inmate was Frascella, the testimony of Jensen is probative regarding Tillman's moral character and suitability to retain his certification as a correctional officer. From Jensen's testimony it can only be concluded that on an occasion which may or may not have been the one involving Frascella, Tillman struck an inmate in the face and nose in retaliation for verbal abuse from that inmate. That inmate's nose was so badly injured that Jensen was required to mop up considerable blood from the floor. That inmate was provided with no medical attention because he was placed on a bus to Starke within a couple of hours after he was struck. Jensen was incarcerated from 1988 to March of 1990. Since Tillman was suspended following the incident with Frascella until his termination, it is further concluded that Jensen's testimony relates to the same time frame as that relevant to this complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order and therein revoke certificate no. C-3171 issued to Willie L. Tillman. DONE and ENTERED this 14th day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3263 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Criminal Justice Standards and Training Commission Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3&4(3); 5(6); 6&7(4); 8(5); 9(6); 14&15(7); 23&24(16); 25&26(17); 27(18); 29(21); 30(22); 31&32(23); 33(24); 34&35(25); and 38(26). Proposed findings of fact 10-13, 16-22, 28, 36, and 37 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: John P. Booth Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Willie L. Tillman 2400 Spring Hollow Drive Orange City, Florida 32763 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes. On or about January 24, 1997, Mr. Dempsey submitted to the Commission an application for licensure as a real estate salesperson. Mr. Dempsey answered "yes" to Question No. 9 on the application, which asks in pertinent part: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" He attached the details to his application. Mr. Dempsey answered "yes" to Question No. 10(a) on the application, which asks in pertinent part: "Has any judgment or decree of a court been entered against you in this or any other state, . . . in which you were charged . . . with any fraudulent or dishonest dealing?" Mr. Dempsey attached the details of a 1988 conviction for mail fraud to his application. On December 12, 1983, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, revoked Mr. Dempsey's probation and sentenced him to two years imprisonment based on his plea of guilty to three counts each of uttering a forged instrument and of second degree grand theft, one count of forgery, and one count of failure to redeliver a hired motor vehicle. On July 9, 1986, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, sentenced Mr. Dempsey to three and one-half years imprisonment based on his plea of guilty to one count of robbery, one count of aggravated battery, one count of possession of cocaine, two counts of forgery, two counts of uttering a forged instrument, and two counts of second degree grand theft. On or about May 31, 1989, Judge Roettger of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to three years confinement based on a guilty plea to one count of mail fraud. The court withheld imposing a sentence of confinement on Mr. Dempsey for another count of the indictment, and sentenced him to five years probation, to run concurrently with the sentence of confinement. On December 21, 1990, Judge Moreno of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to fifteen months' imprisonment based on his plea of guilty to one count of escape. The sentence of imprisonment was suspended, and Mr. Dempsey was placed on a three-year term of supervised release. On January 29, 1992, Mr. Dempsey appeared in the Dade County Court and pled not guilty to one count of soliciting for prostitution. He was found guilty and sentenced to attend an AIDS course and to have an AIDS test. On May 27, 1992, Judge Moreno of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's supervised release and sentenced him to one-year imprisonment for violation of the terms of his supervised release. On July 9, 1995, Judge Roettger of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's probation and sentenced him to imprisonment for five years for violation of the conditions of his probation. On January 14, 1997, Mr. Dempsey was paroled by the United States Parole Commission and released from the Marianna Federal Correctional Institution. His parole expires May 14, 2000. Since January 23, 1997, Mr. Dempsey has been employed by Westgate Resorts, a timeshare resort in Miami, Florida. In July 1997, he was promoted to manager. Since he was found guilty in 1988 of mail fraud, Mr. Dempsey's only criminal conviction was for the misdemeanor of soliciting for prostitution. His other offenses were violations of the terms of his supervised release on the charge of escape and of his probation on the charge of mail fraud. The evidence presented in this case is not sufficient to establish that Mr. Dempsey, at this time, is of good character and trustworthiness and has a reputation for fair dealing. The uncontroverted evidence establishes that Mr. Dempsey has been convicted of crimes involving forgery, grand theft, and mail fraud.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Lloyd Robert Dempsey for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Lloyd Robert Dempsey, pro se 5577 La Gorce Drive Miami Beach, Florida 33140-2137 Andrea D. Perkins Assistant Attorney General Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(b), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact On December 13, 1991, Ms. Sanders was certified as a correctional officer in the state of Florida. Her correctional officer certificate is numbered 122576. On January 30, 2004, Ms. Sanders was employed as a sergeant by the Florida Department of Corrections at the Brevard Correctional Institution (Brevard), where Joseph Sonntag was an inmate. Mr. Sonntag is a diabetic, who must have insulin injections two times each day. On the morning of Friday, January 30, 2004, Bertie Gladys Florich, a correctional officer at Brevard, went to Mr. Sonntag's cell to awake him to take him to the medical unit for his insulin injection. Mr. Sonntag pulled the cover over his head and did not get up. Ms. Florich told Ms. Sanders that Mr. Sonntag would not get up and asked her to tell him to get up for his injection. Ms. Sanders went into Mr. Sonntag's cell, pulled the cover from Mr. Sonntag, and told his cell mate to leave the cell. Ms. Sanders snatched Mr. Sonntag by the collar of his shirt and flung him across the cell. As he landed, his leg hit the sink. Ms. Florich, who was on the next cell level, heard a thump. She looked at Mr. Sonntag's cell and saw Ms. Sanders helping Mr. Sonntag up. Mr. Sonntag had landed too far from his bunk to have fallen from his bunk. After Ms. Sanders left the cell, Mr. Sonntag told Ms. Florich that Ms. Sanders had pulled him forcibly off his bunk and that he had hurt his leg. Ms. Florich called Sergeant Carter, who was a superior officer. Sergeant Carter went into Mr. Sonntag's cell and came out later, stating that Mr. Sonntag needed to be taken to the medical unit. Mr. Sonntag told a male sergeant that Ms. Sanders had thrown him off the bunk. The male sergeant told Mr. Sonntag that if he made such an allegation that an investigation would be conducted and he would be placed in confinement while the investigation was being conducted. Because he feared being placed in confinement, Mr. Sonntag filled out an incident report, stating that he sustained his injuries by falling off his bunk. Mr. Sonntag was taken to the medical unit for treatment, and he also told medical personnel that he had fallen from his bunk. In an effort to cover up her injury to Mr. Sonntag, on January 30, 2004, Ms. Sanders completed and signed a Report of Injury or Illness, which was submitted to Brevard, indicating that Mr. Sonntag fell off his bunk. The report was false. On Sunday, February 1, 2004, Mr. Sonntag's mother came to visit him at Brevard. He told her that Ms. Sanders had thrown him off his bunk, causing the injury to his leg. Apparently, Mr. Sonntag's mother informed officials at Brevard of her son's allegations, because on Monday, February 2, 2004, Mr. Sonntag was asked by officials at Brevard to give another statement detailing the events that led to his injury. Senior Prison Inspector Barry Glover was assigned to investigate Mr. Sonntag's allegations. As part of the investigation, Mr. Glover interviewed Ms. Florich, who did not actually see how Mr. Sonntag sustained his injuries. While the investigation was being conducted, Ms. Sanders approached Ms. Florich in an attempt to get their stories straight. Ms. Sanders tried to get Ms. Florich to tell the investigator that Mr. Sonntag had either fallen off the bed or jumped off the bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Lucinda Sanders did not violate Subsection 943.1395(6), Florida Statutes, or Florida Administrative Code Rule 11B-20.0012(1)(f); finding that Lucinda Sanders did violate Subsection 943.13(7), Florida Statutes; suspending her Correctional Officer Certificate for two years; placing her on probation for two years following the suspension of her certificate; and requiring her to complete such training courses as deemed appropriate by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 27th day of April, 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 27th day of April, 2006.
The Issue The issue in this case is whether the Petitioner is qualified to take the examination for licensure as a real estate salesperson.
Findings Of Fact On or about March 6, 1995, the Petitioner filed an application seeking to be licensed as a real estate sales person. In response to question number 9 on the application form (which inquires about the applicants's criminal history), the Petitioner answered in the affirmative and included the following explanatory details: I entered a plea of guilty to 1 count of distribution of a controlled substance on March 25, 1993, in Federal Court, before Judge Adkins. I was sentenced to 2 years in a Federal Camp. On January 23, 1992, the Petitioner was arrested and charged with two felony charges related to possession of cocaine and conspiracy to possess cocaine. On March 26, 1993, the Petitioner entered a plea of guilty to Count 2 of the indictment. Count 2 charged the Petitioner with conspiracy to possess with intent to distribute cocaine, which is a Class B felony in violation of 21 USC Section 846. On March 26, 1993, a judgment was entered in which the Petitioner was adjudged guilty of the crime described above, was sentenced to a prison term of 24 months, and was fined $15,000.00. The judgment also imposed 4 years of supervised release following release from prison. The Petitioner served 15 months in federal prison and was then transferred to a halfway house for a period of four months. The Petitioner then served the last two months of his sentence on home confinement. He was released from confinement on May 25, 1995, at which time he began a four-year period of probation. The Petitioner is presently on probation. His probation period is presently scheduled to end in May of 1999. With good behavior he may be able to obtain an earlier release from probation. Since his release from confinement the Petitioner has been making regular payments towards his $15,000.00 fine. He presently owes about $10,500.00 on the fine. Following his arrest, the Petitioner cooperated with law enforcement authorities and his cooperation led to the arrest of a number of other people on charges related to possession or distribution of cocaine. Since his release from confinement the Petitioner's primary employment has been in the carpet business. The Petitioner appears to have an earnest desire to be rehabilitated. He did not, however, present any persuasive evidence that he had achieved that goal. Notably absent from the record is any testimony from friends, relatives, neighbors, employers, or business associates regarding such matters as the Petitioner's present character and whether he is honest, truthful, and trustworthy.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application. It is further recommended that such denial be without prejudice to the Petitioner's opportunity to file a future application as such time as he may have persuasive evidence of his rehabilitation. DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February 1996. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties: Proposed findings submitted by Petitioner: (None submitted.) Proposed findings submitted by Respondent: Paragraphs 1 through 10: Accepted in substance with a few additional details in the interest of clarity. Paragraph 11: Rejected as constituting argument about the quality of the evidence, rather than being a proposed finding of fact. Paragraphs 12 and 13: Rejected as a combination of subordinate and unnecessary details and argument. COPIES FURNISHED: William N. Halpern Assistant Attorney General Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Mr. Raul Bado 8490 Southwest 96th Street Miami, Florida 33156 Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner, Juan F. Ramos (Petitioner), is entitled to compensation pursuant to sections 961.01 through 961.07, Florida Statutes (2013). Unless otherwise stated, all references to the law will be to Florida Statutes (2013).
Findings Of Fact Petitioner immigrated to the United States from Cuba in 1980. In April of 1982, Petitioner resided in Cocoa, Florida, within walking distance of his employer, Armor Flite Southeast. Mary Sue Cobb, the victim of a murder, also lived in the area near Petitioner’s home and Armor Flite Southeast. Petitioner and Mrs. Cobb knew one another. Prior to April 23, 1982, Petitioner had placed an Amway order with the victim and her husband. The Cobbs sold Amway products and solicited Petitioner to purchase items and/or become a salesperson for the company. Prior to April 23, 1982, Petitioner had been at the Cobb residence five or six times. Petitioner had been inside the Cobb home. For the two days prior to April 23, 1982, Petitioner had been sick, unable to go to work, and had not been at the Armor Flite Southeast property. At all times material to this case, Manuel Ruiz was the general manager at Armor Flite Southeast. Mr. Ruiz served as Petitioner’s supervisor. From the Armor Flite Southeast property, it was possible to view the Cobb residence. On the morning of April 23, 1982, Petitioner told his wife he was going to work. Petitioner did not, however, enter the Armor Flite property at the beginning of the work day when Mr. Ruiz opened the shop at approximately 6:45 a.m. Moreover, Mr. Ruiz did not see Petitioner at the Armor Flite Southeast property until he came to pick up his check at 11:30 a.m. or noon on April 23, 1982. Instead of a paycheck, Mr. Ruiz gave Petitioner a letter on April 23, 1982, that notified him he was being laid off effective April 21, 1982. Armor Flite Southeast was in Chapter 11 and the trustee for the company gave Mr. Ruiz a list of four persons who were to be laid off. Petitioner was among those four. Petitioner was invited to attend a meeting with the trustee on April 23, 1982, at approximately 3:30 p.m. In theory, the employees were being laid off due to lack of work, but they could be re-hired if the work volume improved. Mr. Ruiz explained the foregoing to Petitioner. Mr. Ruiz and Petitioner had no difficulty communicating as both men were fluent in Spanish. At some time after the meeting with Mr. Ruiz, Petitioner returned home and was there when family members came over later in the afternoon. During the morning of April 23, 1982, Mrs. Cobb was murdered. Following an investigation of the crime, Petitioner was charged with the first degree murder of Mrs. Cobb, was convicted, and was incarcerated. Subsequent to the conviction and sentencing, Petitioner’s conviction was overturned and his case was remanded for a new trial. The second trial resulted in an acquittal on April 24, 1987. On June 28, 2010, Petitioner filed a petition for compensation and alleged he is entitled to relief pursuant to chapter 961, Florida Statutes. An Amended Petition was filed on October 20, 2010, and resulted in an order entered May 13, 2013, by Circuit Court Judge Charles Roberts that provided as follows: The Defendant’s [Petitioner herein] Amended Petition to Victims of Wrongful Incarceration Compensation Act shall be transferred to the Division of Administrative Hearings for findings of fact and a recommended determination of whether the Defendant has established that he is a wrongfully incarcerated person who is eligible for compensation.
