The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2004.
The Issue Whether Respondent's conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent has two certifications: Correctional (No. 188545) issued on December 13, 1999; and Law Enforcement (No. 192621) issued on July 27, 2000. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a law enforcement officer with the Kissimmee, Florida, Police Department. On or about July 13, 2007, while sleeping over at the minor victim's father's residence, Respondent picked up S.R., a 15-year-old child, put her into a bed and straddled her, holding her wrists with one hand while sliding his other hand over the side of her body. He then "nuzzled" or "sucked" on her neck and ear while S.R. struggled underneath him. Respondent "jumped" or "flinched back" when S.R.'s younger sister came back into the room, while S.R. continued to struggle with Respondent. The younger sister of S.R. was in the bathroom and heard S.R. call out. When she ran into the bedroom, Respondent jumped off of the bed, and the younger sister saw S.R. jump off of the bed and get into a second bed in the room. The younger sister also noticed that S.R. was "scared." S.R. sat "quietly and cried" while telling Krista Davis, her father's girlfriend that "while her little sister . . . was in the bathroom, . . . Leo had gotten on top of her in her bed and started to kiss her down her neck and on her ear . . . and rubbed the side of her body."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Leonardo Martinez, be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that his certifications as a correctional and law enforcement officer be revoked. DONE AND ENTERED this 12th day of November, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 12th day of November, 2009. COPIES FURNISHED: Michael Crews, 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 Sharon S. Traxler, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Leonardo Martinez
Findings Of Fact The following facts are stipulated by the parties and are incorporated herein: The Respondent has been the clerk of court for Collier County since June of 1986. The Respondent was the clerk of court at all times material to this complaint. In July of 1990, the Respondent's wife was issued a citation for having glass bottles on the beach, a violation of municipal ordinance No. 16.30, City of Naples. On August 21, 1990, upon failure to timely pay the fine for the violation of the above-described ordinance or to appear in court on this date, an arrest warrant for Theresa Giles was issued. On August 30, 1990, on or about 4:30 p.m., police officers arrived at the Respondent's residence to arrest Ms. Giles for her failure to appear or to pay fine. The officers allowed Ms. Giles to make a telephone call to her husband at the clerk's office. The Respondent went to one of his deputy clerks, Lorraine Stoll and discussed the situation with her. As a result, Ms. Stoll called the officers at the Respondent's home and informed them that the bench warrant for Ms. Giles was recalled. Ms. Giles was not taken into custody as a result of Ms. Stoll's action. These facts are derived from the evidence presented, weighed and credited: Respondent, James Giles was the Collier County finance director, performing the pre-audit function for the county, when he was appointed county clerk to finish a two year term in 1986. He was then elected to a four year term ending in January 1993, and was not reelected. His prior employment experience was as a private certified public accountant, an employee of St. Johns County, and an auditor for the State of Florida. On August 30, 1990, when Theresa Giles called her husband, she was very upset. He had promised to pay the fine, but had forgotten. She was home alone with her young child and her elderly mother when the deputies came to serve the warrant and arrest her. The ticket, or "Notice to Appear" issued to Ms. Giles for her infraction plainly provides notice that if the fine is not paid or the person fails to appear in court at the appointed time, an arrest warrant shall be issued. (Advocate Exhibit No. 2) James Giles immediately called his misdemeanor division and Kathleen Heck answered the phone. After he briefly explained the situation, she went to find the supervisor, Lorraine Stoll. As the two women were at Ms. Stoll's desk, bringing Ms. Giles' case up on the computer, Mr. Giles appeared in person. This was a very unusual situation because the clerk rarely came back to the misdemeanor office. He was Lorraine Stoll's immediate supervisor. He asked if there was anything that could be done and Ms. Stoll responded that the warrant could be recalled. Before she could explain any further, he handed her a paper with his home phone and asked her to make the call. Ms. Giles answered the phone and put the deputy on; Ms. Stoll told him the warrant was recalled, and Ms. Giles was not arrested. Ms. Stoll then told Mr. Giles that the fine and court costs had to be paid. He said the whole thing was ridiculous, that he could not believe a warrant could be issued for such a minor offense. By this time it was after 5:00 p.m. and the cashier's office was closed. Giles paid the $36.50 fine the next day and paid the $100.00 court costs on September 13, some two weeks later. (Respondent's exhibits nos. 1 and 2). James Giles admits being upset at the time that the phone call was made, but was trying to calm down because he knew Lorraine Stoll to be excitable. He was flabbergasted that someone could be arrested for having bottles on the beach. He denies that he pressured Ms. Stoll, but claims he was trying to be rational and get sound advice. He wanted her to make the call because he felt it would "look bad" if he did. James Giles did not raise his voice but both Ms. Stoll and Ms. Heck perceived he was upset and in a pressure situation. Ms. Stoll had never been involved in a circumstance where the warrant was recalled while the deputies were getting ready to make an arrest. She has worked in the misdemeanor section of the clerk's office for eleven and a half years, as deputy clerk. No ordinary citizen could have received the advantage that the clerk and his wife received. Judge Ellis, a Collier County judge, has a written policy providing that a bench warrant may be set aside after payment of costs and fine. Another county judge, Judge Trettis, requires that his office or the State's Attorney be called, and does not have a written policy. Ms. Stoll does not have the authority to recall a warrant without following the proper procedure. This situation was out of the ordinary. She made the telephone call because her boss told her to, and their main concern was that the warrant needed to be recalled so Ms. Giles would not go to jail. On the other hand, Ms. Stoll did not tell Mr. Giles that he was pressuring her, nor did she have the opportunity to tell him the proper procedure before making the telephone call. James Giles' explanation that he was simply seeking advice of his staff and then acting on it without wrongful intent is disingenuous. Whatever his actual knowledge of proper procedures for recalling a warrant, he knew or should have known that what he was doing was not an opportunity available to other citizens. His experience in the clerk's office and in prior public service should have clued him that no one else could simply get a deputy clerk to intercept an arrest with a telephone call.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order finding that James Giles violated Section 112.313(6), F.S., and recommending a civil penalty of $250.00. DONE AND RECOMMENDED this 27th day of January, 1993, 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 27th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4942EC The following constitute specific rulings on the findings of fact proposed by the parties: Advocate's Proposed Findings 1. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraph 9. Adopted in substance in paragraph 12. 8.-10. Adopted in substance in paragraph 10. 11. Adopted in substance in paragraph 13. Respondent's Proposed Findings 1. A.-E. Adopted as stipulated facts in paragraphs 1-5. Adopted in substance in paragraphs 8 and 12. Rejected as the sequence suggested is contrary to the weight of evidence. Rejected as misleading. The evidence shows the process was incorrect and both staff knew it was incorrect. The clerk was informed about the correct procedure after the phone call. The procedure is set out in paragraph 13. The evidence is not clear that the fine and costs could not have been paid the same day. By the time Mr. Giles finished complaining, it was after 5:00. Rejected as contrary to the greater weight of evidence, considering the totality of Ms. Stoll's testimony as well as Ms. Heck's. Rejected as contrary to the greater weight of evidence. Rejected as immaterial. 3. Rejected as contrary to the greater weight of evidence. More specifically, this proposed finding suggests that the culpability was Ms. Stoll's rather than Respondent's. That suggestion is supported only by Ms. Stoll's timid admissions that she should not have made the phone call without having received the payment from her boss. Ms. Stoll's acceptance of blame does not relieve the Respondent of his responsibility. COPIES FURNISHED: Craig B. Willis Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399-1050 Raymond Bass, Jr., Esquire Bass & Chernoff 849 7th Avenue, South - Suite 200 Naples, Florida 33940-6715 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue is whether the Respondent has failed to maintain good moral character.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards Training Commission as a correctional officer on March 21, 1985, and issued Certificate No. 04-85-599-01. At the time of the events which form the basis for the Administrative Complaint, the Respondent was employed as a correctional officer at the Marion Correctional Institution, a correctional facility of the State Department of Corrections. Marion County Sheriff's Deputies, David F. Faircloth, Jr. and Art King, are veteran law enforcement officers who have received training in the detection and recognition of controlled substances, to include marijuana. Both officers have made numerous arrests for the possession of a controlled substance which they suspected was marijuana and which, upon being tested, proved to be marijuana On June 9, 1990, while on regular patrol in Marion County, Florida, Deputy David F. Faircloth, Jr. was directed to investigate an anonymous report of a male and female who had been observed fighting in a white Camaro automobile parked on U.S. Highway 27. While in that vicinity in response to that request, Officer Faircloth responded to a complaint of a disturbance at 1261 N.W. 56th Court, Ocala, Florida. When Deputy Faircloth arrived on the scene, he noticed a white, two-door Camaro. Deputy Faircloth determined upon investigation that the Respondent and Linda Altman, who lived at the address, had engaged in an altercation involving their respective vehicles which were both damaged and parked in the front yard. Both the Respondent and Ms. Altman had been drinking and both were upset. Deputy King was dispatched as a backup and arrived at the Altman residence. Upon his arrival, Deputy King was briefed by Deputy Faircloth, who advised him that both the Respondent and Ms. Altman had been drinking, both were angry with one another, both had engaged in some altercation involving their vehicles which had caused damage to both vehicles, and both were correctional officers. Pursuant to their standard operating procedure, the deputies separated and interviewed separately the Respondent and Ms. Altman. Deputy King talked to the Respondent and Deputy Faircloth talked to Ms. Altman. Deputies Faircloth and King determined that the white Camaro parked at the location belonged to the Respondent. Deputy King stated that he intended to permit the Respondent to leave the scene; however, he was concerned that the Respondent, being a corrections officer, might have a weapon in his vehicle and return to cause more trouble. This testimony is logically inconsistent because if the Respondent had a gun and was released, he could retrieve the gun and return. However, it was on this basis Deputy King asked the Respondent if he could search his vehicle. The Respondent consented to the search of his vehicle by Deputy King. Officer King began his search of the vehicle in the front driver's seat. As Deputy King was leaning into the vehicle, conducting his search, the Respondent leaned over his back into the rear of the automobile and removed a shaving kit from the back seat. The Respondent's unanticipated action startled deputy King, who turned and inquired of the Respondent what he was doing. The Respondent, through words and gestures, indicated to Deputy King that he did not want him to search the shaving kit. The Respondent told Deputy King that there were no guns in the kit; but when Deputy King persisted in being permitted to search the kit, the Respondent indicated that he would open the kit and show Deputy King its contents. When the Respondent unzipped and opened the kit, Deputy King observed at the top of the kit a plastic bag containing dried vegetable matter which Deputy King thought to be marijuana. Deputy King seized as contraband the contents of the plastic bag, and upon administration of a field test for controlled substances, he determined that the substance was marijuana. Deputy King arrested the Respondent, and conducted a search of the Respondent's vehicle where he found a portion of a partially-smoked marijuana cigarette and a device which appeared to be some type of smoking device. The bag of marijuana which Deputy King seized from the Respondent's shaving kit was sent to the Florida Department of Law Enforcement crime laboratory for analysis. The crime laboratory concluded that the plastic bag contained 4.7 grams of cannabis or marijuana. One cannot determine from the report whether the burnt cigarette was tested and determined to be marijuana. Although Deputy King filed charges against the Respondent, the charges were later dismissed by the prosecutor for reasons unknown to Deputies King and Faircloth.
The Issue Whether Petitioner's application for licensure as a Community Association Manager by Examination should be granted.
Findings Of Fact When Petitioner was 20 years old, he and a group of other young adults stole approximately $15 worth of chrome off of a car in a used car lot. Petitioner was arrested on November 11, 1983, by the Deland, Florida, Police Department. On February 1, 1984, Petitioner appeared in Volusia County Court and pled guilty to "Petit Theft" under Section 812.014(3)(a), Florida Statutes. This offense is a second degree misdemeanor punishable as provided in Sections 775.082 or 775.083, Florida Statutes. The court withheld adjudication of guilt, placed Petitioner on six months' probation and assessed Petitioner $75 in costs. Petitioner was again arrested on March 12, 1993, by the Daytona Beach Shores, Florida, Police Department. Petitioner was charged with "Driving Under the Influence of Alcohol." Section 316.193, Florida Statutes, does not equate "Driving Under the Influence of Alcohol" with either a felony or a misdemeanor until the fourth conviction. Petitioner appeared in Volusia County Court on May 11, 1993, and pled nolo contendere to the lesser charge of "reckless driving," under Section 316.192, Florida Statutes. Florida Department of Law Enforcement documents created at the time list this charge as a first degree misdemeanor. In actuality, the offense of "reckless driving" is grouped under the "State Uniform Traffic Control" statutory Chapter. Without specifying whether or not "reckless driving" constitutes a felony or misdemeanor, Subsection 316.192(2)(a) provides that upon a first conviction of reckless driving the offender shall be punished by imprisonment for a period of not more than 90 days or by a fine of not less than $25 nor more than $500, or by both. The court adjudicated Petitioner guilty of "reckless driving" and assessed $300 in fines and costs. Petitioner's sentence fits the statutory category of a "first conviction," so it is concluded that this was his first reckless driving offense. There also is no evidence of any other traffic offenses committed by Petitioner. The statutory trail of "reckless driving" runs through Sections 316.192, 322.291, 318.17, and 921.0012, and the undersigned has been unable to determine that a first offense under Section 316.192 constitutes either a misdemeanor or a felony. Sections 775.04 and 775.08(2), Florida Statutes, suggest that a first offense of "reckless driving" is neither a crime nor a misdemeanor. From this information, it is concluded that there is no affirmative proof that Petitioner was convicted of a first degree misdemeanor. It is further concluded that there is no presumption created by his plea of nolo contendere to the reckless driving charge that Petitioner lost his civil rights. On February 10, 1997, Petitioner submitted an application for licensure by examination to become a Community Association Manager. Prior to his application for licensure, Petitioner had been the subject of an investigation by the Respondent Department for the unlicensed practice of community association management. As a trusted maintenance man for the same employer for over nine years, Petitioner had been trusted with money, with purchasing supplies and with doing maintenance work. He had acquitted himself honestly and honorably. Petitioner and his employer believe that the investigation arose out of a complaint that Petitioner also was giving instructions to other maintenance personnel or advising tenants, which arguably constitutes an element of the practice of Community Association Managment. They believe that the complaint was made by a rival condominium owner and/or by a resident manager whom the employer terminated. The investigation has been abated pending the instant application licensure proceeding. The application submitted by Petitioner contained the following question regarding the applicant's criminal history: Have you ever been convicted or found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( ). This question applies to any violation of the laws of any state, territory, or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. If you answer "NO" and it is later determined that the records have not been sealed or expunged, it will be considered that you knowingly provided inaccurate information on this application. Petitioner marked the space for "No," and submitted no history of his offenses and pleas with his application. On March 12, 1997, the Agency notified Petitioner that his application was deficient because the 1983 and 1993 arrests and case dispositions were not fully disclosed and documented on his application. He was given 60 days in which to submit the required information, which he did. On May 28, 1997, Respondent sent Petitioner its Intent to Deny Community Association Manager's Application for Licensure by Examination for failure to establish good moral character as required by Section 468.433, Florida Statutes. Petitioner explained that he thought the withholding of adjudication on the second degree misdemeanor guilty plea charge meant it was erased and need not be revealed. Although Petitioner conceded that no one told him adjudication was withheld on his 1993 reckless driving charge, he first testified that somehow he initially assumed that adjudication had been withheld. The remainder of his testimony, together with Petitioner's Exhibit 1, are construed to prove that, prior to Petitioner's completion and submission of his application for licensure in January of 1997, Petitioner had been informed that adjudication of guilt had not been withheld on his 1993 plea of nolo contendere to the charge of reckless driving, because the charge and conviction had shown up in a computer check when he tried to insure a new car prior to his professional licensure application. While testifying at formal hearing, Petitioner initially stated that he had not fully read the application question concerning any criminal record. Then, he represented that he had not fully comprehended it. Finally, he said he thought the 1993 conviction constituted a traffic offense and was not a misdemeanor. Based on the difficulty of determining the classification of the 1993 conviction, the undersigned concludes that Petitioner did not willfully withhold that information, and need not have disclosed it as the application question was drafted. The question is ambiguous in first requesting information about nolo contendere pleas to felonies or misdemeanors and then adding "violation of the laws" as an afterthought. Petitioner has not had any criminal charges or traffic offenses lodged against his record since 1993. Petitioner has never been the subject of any civil law suit involving fraud, dishonesty, misrepresentation, or concealment of material facts. Petitioner is highly respected by his direct supervisor and one of the owners of the buildings he maintains, both of whom testified to Petitioner's veracity, trustworthiness, and good moral character spanning 1988 through the date of formal hearing.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency enter a Final Order permitting Petitioner to sit for the examination. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998. COPIES FURNISHED: Edward D. Broyles, Executive Director Department of Business and Professional Regulation Division of Professions Regulatory Council of Community Association Managers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 R. Michael Kennedy, Esquire Kennedy & Pyle 687 Beeville Road, Suite A South Daytona, Florida 32119 Thomas G. Thomas Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
The Issue Whether respondent's certification as a correctional officer should be revoked for having pled nolo contendere to a felony.
Findings Of Fact Respondent, Leland M. Large (Large), was certified by petitioner, Criminal Justice Standards and Training Commission (Commission), on July 1, 1974, and was issued certificate number A-2364. Currently, Large is employed as a correctional officer by Metropolitan Dade County, Department of Corrections and Rehabilitation (County), and has been so employed for 16 years. On October 15, 1985, Large entered a plea of nolo contendere to the felony offense of arson, Section 806.01, Florida Statutes, before the Circuit Court, in and for the Eleventh Judicial Circuit of Florida. The court accepted the plea, withheld an adjudication of guilt, and placed Large on a 12-month period of probation. On May 15, 1986, the court granted a motion for early termination of Large's probation. Regarding the crime with which he was charged, the proof demonstrates that in September 1985, Large owned a Toyota Corolla automobile which, because of an accident, was not road worthy. At that time, Large did not have the money to repair the car, was unable to sell it, and was having problems maintaining the payments on the vehicle. Accordingly, to relieve himself from the car payments, Large took the car to a secluded location and burned it. At hearing, Large testified that although he did take the car to a secluded location with the intention of burning it, and in furtherance of such intent smashed a window in the car and poured gasoline at its rear, that the actual burning of the car was an accident. According to Large, after having poured gasoline at the rear of the car, "I got disgusted with myself and I was going to change my mind and I threw a cigarette down and that is what started the fire." Large's testimony that the burning of the car was accidental is not credited, and it is found that he did intentionally burn the subject vehicle to relieve himself of the obligation to make further payments on it. To mitigate the gravamen of his offense, Large offered proof at hearing that at the time he burned the car he was an alcoholic who was not fully cognizant of his actions, but has since recovered. Regarding his rehabilitation, the proof demonstrates that following the entry of his plea of nolo contendere to the crime of arson, Large was suspended by the County for 28 days. During this period, Large was an inpatient at an alcohol rehabilitation center and successfully completed the program. Since such time, Large has remained sober and current in his financial obligations. To date, Large, who is currently 38 years of age, has been employed by the County as a correctional officer for 16 years, and his annual evaluations have ranged from satisfactory to outstanding. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair, respectful of the rights of others, and otherwise of good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which revokes the certification of respondent, Leland M. Large. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of July 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Respondent's proposed findings of fact are addressed as follows: 1-4. Addressed in paragraphs 1 and 6 to the extent pertinent. 5. Addressed in paragraph 5. 6-13 and 15-39. These proposed findings are not relevant to the disposition of this case, but have been addressed in paragraphs 3-5 so that respondent's position could at least be depicted. 14. Addressed in paragraph 2, otherwise rejected as not shown to be relevant. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10630 N.W. 25th Street Miami, Florida 33172 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Daryl McLaughlin Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner was discriminated against based on retaliation for participation in a protected activity in violation of Chapter 760.10(7), Florida Statutes.
Findings Of Fact Petitioner (Holden) is an African-American female. At all times relevant to this petition, Holden was employed in a probationary status by the Florida Department of Corrections at Apalachee Correctional Institution (ACI) as a Correctional Officer. Probationary officers are not entitled to progressive discipline, but can be terminated for any reason. At the hearing, Holden withdrew her claims that the Department had discriminated against her based on her race and sex. On or about July 22, 2001, Captain Tullis Scipper responded to a call from the Medical Unit at ACI. Upon his arrival, he observed Officer Holden in front of the Suicide Watch Isolation Cell. She was cussing at the inmate with whom she had a previous confrontation. Scipper explained to her that she was not to argue or verbally abuse the inmate and that she should stay away from the cell. On at least one other occasion that night, Captain Scipper responded to the Medical Unit and observed similar actions by Holden. The next day, Captain Scipper received a call from Warden Adro Johnson, who inquired as to what had happened in the Medical Unit the night before. Warden Johnson had received a complaint from Nurse Carla Weeks that Officer Holden had been cussing the inmates and he was checking into the complaint. Warden Johnson asked Captain Scipper to bring Officer Holden to his office. The purpose of the meeting was not to ascertain whether Officer Holden had been cussing at inmates. The Warden had two eye-witness, staff accounts of her behavior. When confronted, she advised Warden Johnson that she had become angry and had cussed the inmate. Warden Johnson counseled Holden about her behavior. Warden Johnson testified that he felt that Holden was unreceptive to his counseling and that she was argumentative. He believed that she was not displaying the attitude that a good officer displays when he/she is being counseled by a warden. Holden also was upset and crying, and, as a result, Warden Johnson informed her that she needed to adjust her attitude and come back to see him the next day. Warden Johnson testified that he had not made up his mind as to what action he would take against Holden for her actions with the inmate. After the meeting with Warden Johnson, Captain Scipper observed Officers Holden and Shiver arguing with each other. Holden testified that she had asked Shiver about why her tour was changed, and this led to the incident observed by Scipper. In Scipper’s opinion, Holden was the “aggressor” because she continued to advance on Shiver, even though Shiver had his hands in the air and was stating words to the effect that he did not have anything to do with whatever they were arguing about. Knowing that Holden had just had a counseling session with the Warden, Scipper was surprised that Holden would almost immediately be involved in an altercation with a staff member. He relieved Holden of her duties for the rest of her scheduled shift. The next day Holden met as scheduled with Warden Johnson. Captain Scipper did not attend this meeting. Johnson had been informed of the previous day’s incident between Officers Holden and Shiver. He asked Holden if she was willing to change her attitude. He had not determined prior to the meeting if he would take any action at all against Holden. Johnson felt that Holden's response to him was disrespectful, and that she did not have the right attitude. Johnson terminated Holden based on what he perceived to be her poor attitude. He knew that Holden was approaching the end of her probationary status and that if he wanted to terminate her before she attained career service status with its attendant protections, he needed to do so at that time. Petitioner complained in an incident report filed before the Warden the first time that Captain Scipper refused to listen to her when he counseled her about a prior staff altercation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 24th day of September, 2003. COPIES FURNISHED: Kimberly Holden 2103 Vista Road Marianna, Florida 32448 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
