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 The issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a), and if so, what penalty should be imposed.
Findings Of Fact The Department?s Case Respondent is a certified corrections officer in the State of Florida, to whom Petitioner has issued certificate number 249713. On or about April 9, 2011, at approximately 2:00 a.m., Officer George Dodson of the Cottondale Police Department responded to a disturbance call at the Cottondale Villas at 3111 Willow Street in Cottondale, Florida. Officer Dodson found a group of people in the parking lot, including Respondent. There was a large amount of blood on the ground. Ms. Bradie had a cut on her hand that was wrapped in a cloth, and denied knowing how her hand was cut. Officer Dodson spoke to several people at the location, and the consensus was that Ms. Bradie had cut Mr. Marques White with a box cutter. None of the people with whom he spoke testified at hearing. No box cutters were found at the scene. Mr. White was not present at the scene. He returned at approximately 4:00 a.m., but was still bleeding and could not really speak. Officer Dodson did not take statements from anyone at the scene because, other than Ms. Bradie, all of them appeared to be intoxicated. He did recall Ms. Bradie saying she was struck in the face, but does not recall her face being swollen. The next day, Officer Dodson learned that Mr. White had returned to the hospital because of his injuries, which were serious. Pictures taken of Mr. White show a scar on his lip and arm, and a scar resulting from the performance of a tracheotomy. However, there is no evidence to indicate whether Mr. White had any of these scars prior to the incident, or that all of the injuries evidenced by the scars occurred as a result of Respondent?s actions. Officer Dodson was able to interview Mr. White on April 15, 2011, and a witness statement/affidavit was prepared on April 17, 2011. The statement of Mr. White is hearsay, and he did not testify. On April 15, 2011, Officer Johnson filed an affidavit/complaint and application for warrant against Ms. Bradie for aggravated battery. An information filed June 15, 2011, charged her with aggravated battery in violation of section 784.045(1)(a)1., Florida Statutes, a second-degree felony. A warrant for Ms. Bradie?s arrest was issued that same day. Ms. Bradie resigned her position at the Jackson Correctional Institution on June 27, 2011. Ms. Bradie entered a pretrial intervention program, and the charges against her were nolle prossed on February 25, 2013. Richard Johnson is an assistant warden at the Charlotte Correctional Institution. In April of 2011, he worked in the Inspector General?s Office at the Florida Department of Law Enforcement. Mr. Johnson investigated an administrative case against Respondent stemming from the April 2011 incident. He spoke to Mr. White, and recorded an interview with him. He did not speak with Ms. Bradie. In sum, Petitioner proved that on April 9, 2011, Respondent was present at an altercation at the Cottondale Villas. She had a cut on her hand, and there was a large amount of blood on the pavement. All of the other people present smelled of alcohol or admitted to drinking. Petitioner presented no testimony from anyone who was present during the altercation to describe the events leading to the charges against Respondent. Further, Petitioner presented no competent evidence regarding the item allegedly used to cut Mr. White, as there was no evidence regarding the discovery of any item found at the scene. Respondent?s Story Ms. Bradie testified on her own behalf. She is the only person who testified that was present during the altercation. She testified that she went to Cottondale Villas to pick up her child from her mother, who cared for the child while Ms. Bradie was at work. When she was leaving her mother?s apartment, she heard her brother, Lesidney, outside arguing with Marques White. According to Ms. Bradie, she put her baby in the car and told her brother to go inside, because Marques White was “not worth it.” This apparently angered Mr. White, who started arguing with her. Ms. Bradie?s mother came out of the apartment and tried to break up the argument. Mr. White swung around her mother in order to try to hit Lesidney, and continued arguing with both Ms. Bradie and her brother. A bystander, Marcus Bellamy, pulled Lesidney away from the argument. At that point, Marques White jumped on Ms. Bradie and started hitting her in the face. Ms. Bradie is five feet, one-inch tall. She testified that Mr. White had pushed her down to the ground. While she was close to the ground, she picked something up off the pavement and started swinging to try and get him off of her. While she believes she probably cut him in her effort to get free, she could not identify the object she picked up (which was never located) or say that all of his injuries were a result of her actions. There is no evidence that she deliberately tried to cut him at all, much less that she meant to cut his face. Ms. Bradie?s account of the events is the only evidence from a witness who was actually present at the scene, and her testimony was credible. The most persuasive and compelling testimony presented is that Ms. Bradie acted in self-defense. No evidence was present to rebut her testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of February, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2014. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ashley Bradie (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Respondent, Theodore Lazier, Jr., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement, Criminal Justice Standards and Training Commission, and dated June 18, 2004, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a law enforcement officer and investigating complaints against individuals holding certificates as law enforcement officers in the State of Florida, pursuant to Section 943.3195, Florida Statutes. At the times pertinent to this matter, Respondent, Theodore Lazier, Jr., was certified by the Commission as a law enforcement officer, having been issued Law Enforcement Certificate Number 138687 on August 20, 1993. Since being certified, Mr. Lazier as been employed as a correctional officer at the Dade Correctional Institution (hereinafter referred to as the "Correctional Institution"), a state facility. On and between November 14, 1999 and September 24, 2003, Mr. Lazier, while working as a recreational supervisor, brought items declared to be contraband into the Correctional Institution. Those items included movies, candy, razor blades, and one pair of athletic shoes with cleats. When the items of contraband were discovered by Correctional Institution officials, Mr. Lazier admitted bringing the items to the facility, a fact which he also admitted at the final hearing. He also explained why he had introduced the items into the facility and, while his explanation does not exonerate him from the charges in this case and apparently constituted grounds to terminate his employment at the facility, his explanation at least dispelled any thought that he had introduced the items for any purpose other than assisting him in the discharge of his duties. As for the movies, Mr. Lazier testified convincingly and without any evidence to the contrary being offered by the Commission that he had been given specific permission to show movies to inmates as long as those movies did not contain sex or violence. That permission was given by the individual who served as warden prior to the current warden's employment. The candy consisted of small pieces of primarily hard candy which Mr. Lazier used to reward inmates that assisted him as "aides" and other inmates who gave him "thoughts for the day." The razor blades, which are the most troublesome items of contraband he brought into the facility, were used by inmates, under Mr. Lazier's supervision to work on sports equipment, like the weight-lifting benches. The razor blades were collected, accounted for, and stored under lock and key after their use. Finally, the one pair of shoes introduced into the facility by Mr. Lazier was used by inmates participating in football. The bringing of the items of contraband into the Correctional Institution, other than the movies, constituted an act which would constitute a felony offense as specified in Section 944.47(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Theodore Lazier, Jr., violated Section 943.1395(7); dismissing the allegation that he violated Section 943.1395(6); and suspending his certification for a period of one year. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 22nd day of December, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Theodore Lazier, Jr. 225856 South West 132d Court Naranja, Florida 33032 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On August 21, 1990, the Petitioner submitted an application for licensure as a real estate salesman in the state of Florida. Item 7 of the licensure application form required the applicant to answer the following question: "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?" Petitioner responded yes to that question. The application form provided that "If you answered 'YES,' please state the details including dates and outcome in full. (Use separate sheet if necessary)." The only response provided by Petitioner was "1970 found guilty shooting a firearm in a dwelling - served 28 months Avon Park and work release." In fact, Petitioner has been arrested and/or convicted on several other occasions that were not listed on his application. On October 19, 1964, the Petitioner was found guilty of breaking and entering an automobile, petit larceny, and carrying a concealed weapon in Case 64-755 in the Criminal Court of Record in and for Dade County, Florida. Petitioner was placed on probation for a period of one year in connection with that case. On August 13, 1975, the Petitioner entered a plea of guilty to a charge of unlawfully and feloniously breaking and entering a dwelling with the intent to commit a felony therein, to-wit: grand larceny. The court suspended imposition of sentence, withheld adjudication of guilt and placed the Petitioner on probation for a term of five years. This case was Case Number 75-5081 in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County. On June 18, 1976, the Petitioner entered a plea of guilty to robbery, shooting into an occupied dwelling, and unlawful possession of a firearm while engaged in a criminal offense. Petitioner was sentenced to five years in the state penitentiary. The case was Case No. 76-3328 in the Circuit of the Eleventh Judicial Circuit of Florida in and for Dade County. Apparently, this was the case the Petitioner was referring to in the disclosure set forth in his Application. However, the application lists the date of conviction as 1970 and the offense actually took place in 1976. As a result of the Petitioner's conviction in Case No. 76-3328, his probation in Case No. 75-5081 was violated and Petitioner was ordered to serve two years in the state penitentiary to run concurrently with the sentence in Case No. 76-3328. The violation of probation order was entered on June 18, 1976. In an Information dated April 26, 1982, the Petitioner was charged with disorderly conduct and two counts of resisting an officer without violence. The charges were assigned Case No. 82-61725 in the County Court for Dade County, Florida. Petitioner was found guilty of the two charges of resisting arrest without violence and was fined on June 21, 1982. On February 22, 1988, the Petitioner entered a plea of Nolo Contendere to the offense of battery on a law enforcement officer in Case No. CR-87-6784 in the Circuit Court of Orange County, Florida. On February 24, 1988, the court entered an order withholding adjudication and placing Petitioner on probation for two years. On November 29, 1988, the Petitioner entered a plea of guilty to two counts of grand theft in the third degree in Case Nos. 88-21122 and 88-21123 in the Circuit Court for the Eleventh Circuit in and for Dade County, Florida. The Petitioner was ordered to serve one day imprisonment as a result of those convictions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order denying the Petitioner's application for licensure as a real estate salesman in the State of Florida. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of May 1991. J. STEPHEN MENTON 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 16th day of May 1991. COPIES FURNISHED: Mr. Stephen C. Stein 2515 Northeast 208th Terrace North Miami Beach, Florida 33160 Manuel E. Oliver, Esquire Department of Legal Affairs 400 West Robinson Street Suite S107 Orlando, Florida 32801 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character by unlawfully acquiring or obtaining, or attempting to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge on or about July 16, 1999; by unlawfully withholding information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance on or between April 1, 1999, and August 5, 1999; by corruptly using or attempting to use his official position as a law enforcement officer in such a manner as to secure a special privilege for himself or others, to wit: prepared a fictitious Offense/Incident Report as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Tad K. Moody, is a certified law enforcement officer in the State of Florida. He was issued Law Enforcement Certificate No. 160029 on February 11, 1996. Respondent was employed by the City of Tampa Police Department as a police officer during the period February 11, 1996, through May 19, 2000. In August of 1998, Respondent received an on-duty injury and was prescribed pain medications as a result. Respondent signed a contract with Dr. Greenberger stating that he would only receive controlled substances from Dr. Greenberger. Respondent went to several different doctors after August 1998 and received prescription pain medications from all of them. Respondent never advised his treating physicians that he was receiving Hydrocodone or other pain medication from each of his treating physicians. Respondent did not inform any of the physicians that he was receiving prescription pain medications from any of the other physicians. On or about July 16, 1999, Respondent reported to his treating physician’s office that his vehicle was stolen with his medication in it. Dr. Batas required substantiation of the theft in the form of an auto theft report prior to issuing additional medication. On or about July 16, 1999, Respondent prepared a false Tampa Police Department Offense/Incident Report, reporting that his vehicle containing medications had been stolen. He submitted it to Dr. Batas' office in order to receive additional medication. On August 4, 1999, Respondent presented a prescription for 90 Vicoprofen to the Eckerd Drug Store pharmacy at 1904 West Lumsden in Brandon, Florida. Dr. Steven J. Tresser, M.D., had written Respondent a prescription on August 4, 1999, for 40, not 90, Vicoprofen. The Eckerd Drug Store personnel identified Respondent as the individual who submitted the altered prescription for Vicoprofen or Hydrocodone. Respondent admitted to Detective Lusczynski, during an interview, that he had an addiction problem due to the back pain he suffered as a result of the injury he received in 1998. In late 1999, Respondent was charged with obtaining a controlled substance by fraud (2 counts) and obtaining drugs from a physician by withholding information. On or about July 24, 2000, Respondent entered into a Drug Court Agreement for 18 months' probation with the Thirteenth Judicial Circuit's State Attorney's Office. As part of the agreement, Respondent was required to successfully complete the Drug Court Program, including evaluation; counseling; random urinalysis; and pay $372 court costs, plus $40 a month toward supervision. Respondent's drug case was dismissed on March 14, 2002, based on his successful completion of the Drug Court Program. The evidence is clear and convincing that Respondent unlawfully acquired possession of a controlled substance by misrepresentation on or about July 16, 1999. The evidence is clear and convincing that Respondent unlawfully withheld information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance during the relevant time period. The evidence is clear and convincing that Respondent corruptly used, or attempted to use, his official position as a law enforcement officer in such a manner as to secure a special privilege for himself by preparing a fictitious Offense/Incident Report on or about July 16, 1999.
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 Section 943.13(7), Florida Statutes (2000). Respondent's certification be revoked. DONE AND ENTERED this 20th day of February, 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 20th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Tad K. Moody 10124 Woodberry Road Tampa, Florida 33619 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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.
Findings Of Fact Ernest Brown is a registered real estate salesman holding a registration issued by the Florida Real Estate Commission. Brown received notice of the instant hearing as required by the statutes and rules. His probation officer testified she had contacted him and he had advised her that he would not attend the proceedings. Brown was placed on probation with an adjudication of guilt withheld by the Circuit Court of Pinellas County, Florida, on January 25, 1989 (see Exhibit 2). Paragraph 10 of the conditions of probation requires that Brown serve 180 days in the Pinellas County Jail on weekends from 7:00 p.m. Friday until 7:00 p.m. Sunday. Because of the appeal of his case, Brown did not begin serving this jail term until August 24, 1989. He has served 72 of the 180 days according to the records of his probation officer. Brown is currently in the custody of the State's probation department.
Recommendation The Board's counsel advised the Hearing Officer after hearing that Respondent had surrender his license. This constitutes an ex parte communication of which notice is hereby given to all parties. This fact is immaterial to consideration of the matter at hand. The Board has long taken the position, quite correctly, that surrendering of a license did not impair jurisdiction to consider violations of its statutes by a licensee while licensed. Similarly, surrender of a license cannot terminate the Hearing Officer's consideration of the matter after hearing. The instant case was duly heard and the Recommended Order prepared prior to receipt of any pleadings relative to surrender by Brown of his license. At this point, the Board may accept surrender of the license and dismiss the Administrative Complaint, in which case Brown would be considered not to have had any disciplinary action against him, or the Board may enter its final order based upon the record and this Recommended Order. Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the license of Ernest Brown. DONE and ORDERED this 23rd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. Ernest B. Brown 2027 Thirteenth Street, South St. Petersburg, Florida 33172
