Findings Of Fact Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute. Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title 26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966. On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey. There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than 25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida. The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey. Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application for a Class "C" Private Investigator License. DONE and ENTERED this 21st day of April, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1992. Copies furnished: Ronald L. Jones, Esquire Jones and Koch 1200 East Lafayette Street, Suite 108 Tallahassee, FL 32301 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary, Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
The Issue The Administrative complaint dated September 19, 1994, alleges that Respondent, a licensed class "D" security officer, violated section 493.6118(1)(j), F.S. by committing a battery on or about January 28, 1994. The issue is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact At all times relevant to this action, Respondent, Ivan Machiz, was licensed as a class "D" security officer, license number D91-19035, by the Department of State, Division of Licensing, pursuant to chapter 493, F.S. The proceeding at issue is the only disciplinary action in evidence against Mr. Machiz' license. On January 28, 1994, Mr. Machiz visited Jameryl Curley at her apartment in Tampa, Florida. Mr. Machiz and Ms. Curley had been roommates. Mr. Machiz sought to recover his claimed possessions, including some chairs and a French racing bicycle. Ms. Curley told Mr. Machiz she had sold the items as payment for some delinquent bills and that he was not entitled to take them. He moved to take the bicycle and she hung on to it. The couple argued and struggled over the bicycle. In the struggle Mr. Machiz grabbed Ms. Curley and pinned her left arm behind her back, twisting it and causing her to cry for help. Benjamin Dobrin, who lived with his brother in the next door apartment and shared a back porch with Ms. Curley, answered the call and found Mr. Machiz on top of Ms. Curley, forcing her face-first into a couch or futon, and twisting her arm behind her back. Mr. Dobrin immediately returned to his apartment and called "911" for help. He then went back to Ms. Curley's apartment. By then, she was up and was holding on to the bicycle and Mr. Machiz was dragging it with her. She was crying and yelling, "Help, you're hurting me. Stop!" Mr. Dobrin and his brother stopped the bicycle and Mr. Machiz left. Deputy Chris Williams arrived shortly thereafter and found Ms. Curley upset and hyperventilating. After interviewing the Dobrins, Ms. Curley, and then Mr. Machiz (at his apartment in the next building), Deputy Williams arrested Mr. Machiz. He admitted that he put Ms. Curley in a wristlock because she was struggling against his attempts to recover what he claimed was his. He was not protecting himself or another from physical harm. At the criminal trial on one count of a battery charge, on March 24, 2994, County Judge Cynthia A. Holloway heard the testimony of the Deputy, Mr. Dobrin, Ms. Curley, and Mr. Machiz, and admonished that Mr. Machiz had no right to "self-help" recovery of his property, to go to someone's apartment to remove property over objection, and to "pulverize anybody to get that property back". (Respondent's exhibit #1, p. 20) The court withheld adjudication of guilt, and placed Mr. Machiz on six months probation, with the provision for termination after four months on the condition that he perform 25 hours of community service, pay court costs and write a letter of apology to Ms. Curley.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the agency enter its Final Order finding that Ivan Drew Machiz violated section 493.6118(1)(j), F.S., and imposing a penalty of $500 fine. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1995. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250 Richard R. Whidden, Jr., Esquire Dept. of State/Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Ivan Drew Machiz 481 Hardendorf Avenue Atlanta, Georgia 30307
Findings Of Fact In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years. During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales. In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again. The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony. Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried. The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted. Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure. In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time. The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above. Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted. DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made. Respondent's Proposed Findings of Fact Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made. Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery. Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented. COPIES FURNISHED: Mr. William C. Harrell P.O. Box 5503 Jacksonville, FL 32247 John C. Jordan, Esq. Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esq. General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue Whether Petitioner has cause to terminate the Respondent's employment as alleged in the Administrative Complaint dated October 20, 1998.
Findings Of Fact On August 14, 1998, Respondent, a teacher employed by Petitioner, entered a plea of guilty to the charge of exploitation of an elderly person, which is a first degree felony pursuant to Section 825.103, Florida Statutes. At the same time, Respondent also entered a plea of guilty to the charge of petit theft over $100.00, which is a first degree misdemeanor. In entering these pleas, Respondent advised the court, pursuant to Rule 3.172(d), Florida Rules of Criminal Procedure, that she believed the pleas were in her best interest and that she was maintaining her innocence to the charges. The court withheld adjudication of guilt as to the charge of exploitation of an elderly person, adjudicated her guilty of petit theft, sentenced her to one day of time served, placed her on probation for 20 years, and required that she pay restitution to the Estate of Lillie Keller in the amount of $52,000.00. 1/ By letter dated October 21, 1997, Petitioner reassigned Respondent to a position with no direct contact with children pending the outcome of the criminal charges. Following an investigation, the superintendent of schools recommended to the school board that Respondent's employment be suspended without pay and terminated. On October 7, 1998, the school board voted to adopt that recommendation. The recommendation and the subsequent vote to adopt the recommendation were based on Respondent's plea of guilty to the charge of exploitation of an elderly person. Petitioner followed its procedural rules in investigating this matter and in voting to terminate Respondent's employment. As of October 7, 1998, Respondent held a professional services contract and had been employed by Petitioner for approximately 13 years as a teacher. Section 231.02(1), Florida Statutes, requires school board employees to be of good moral character. Respondent, as a teacher, is required by Section 231.02(2), Florida Statutes, to be fingerprinted and screened by the Florida Department of Law Enforcement. Section 435.03(2), Florida Statutes, provides, in pertinent part, as follows: (2) Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (v) Section 825.103, relating to exploitation of an elderly person or disabled adult, if the offense was a felony. Petitioner's Rule 3.12, pertaining to criminal background checks of current and prospective employees, has been duly enacted and provides, in pertinent part, as follows: Definitions: For the purposes of this policy: * * * b. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of whether adjudication is withheld. * * * 3. A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. Section M of the collective bargaining agreement between the Petitioner and the Palm Beach County Classroom Teachers' Association provides for progressive discipline of covered employees such as Respondent. Section M provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With a Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with the provisions of this Section, including just cause and applicable law. ... Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable law. Section 435.06(2), Florida Statutes, requires an employing agency, such as the Petitioner, to take the following action when an employee has failed to meet the requirements of Section 435.03(2), Florida Statutes: The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that terminates Respondent's employment based on the findings of fact and conclusions of law contained herein. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 August, 1999.
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 the Department of Health and Rehabilitative Services improperly awarded a contract to National Health Laboratories, Inc. for the reasons set forth in the petition.
Findings Of Fact By Invitation to Bid mailed March 26, 1993 (ITB), the Dade County Public Health Unit requested bids on an annual contract for the performance of clinical laboratory test services. The Dade County Public Health Unit is under the Department of Health and Rehabilitative Services (HRS). The contracting agency shall hereafter be referred to as HRS. The ITB called for the opening of bids on April 12, 1993. Six bids were timely submitted. The apparent low bid was submitted by National Health Laboratories, Inc. (NHL). The NHL bid was $202,271. The second low bid was submitted by Continental Medical Laboratory, Inc. (CML). The CML bid was $241,100. HRS issued a notice of intent to award the contract to NHL. CML timely protested. There is no issue as to the responsiveness of the CML bid. The only issue as to the responsiveness of the NHL bid concerns the matters raised by CML. CML's petition alleges that the bid of NHL was defective because the Sworn Statement Pursuant to Section 287.133(3)(a), Florida Statutes, on Public Entity Crimes (Public Entity Crime Affidavit) was incomplete, an agreement attached to the Public Entity Crime Affidavit did not relieve NHL from disqualification concerning CHAMPUS fraud, and NHL should be disqualified from bidding because it failed timely to inform the Department of Management Services of the company's conviction of a public entity crime. Paragraph 10 of the General Conditions of the ITB allows HRS to "waive any minor irregularity or technicality in bids received." However, special conditions provide, in part: PUBLIC ENTITY CRIMES Any person submitting a bid or proposal in response to this invitation must execute the enclosed [Public Entity Affidavit], including proper check(s), in the space(s) provided, and enclose it with the bid/proposal. Failure to complete this form in every detail and submit it with your proposal will result in immediate disqualification of your bid. The Public Entity Crime Affidavit completed by NHL and submitted with its bid was executed and notarized on April 9, 1993. Paragraph six of the form affidavit states: Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in the management of the entity, or an affiliate of an entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] The next paragraph of the Public Entity Crime Affidavit form states: I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH I (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. In completing the Public Entity Crime Affidavit, NHL penned in, just over the second alternative that discloses a conviction, "See Attached." The attachment was a copy of an Agreement dated December 31, 1992, between NHL and the "state of Florida" (Settlement Agreement). The agreement was executed by an NHL officer and the Director, Medicaid Fraud Control Unit of the Auditor General Office. The Auditor General's Office is not part of the Department of Management Services. The Settlement Agreement concerns invoices from NHL to the Florida Medicaid program for certain cholesterol and iron tests from January 1, 1987, through November 30, 1992. The Settlement Agreement requires NHL to pay as restitution to the State of Florida $1,470,917. In return, the state of Florida, for itself and on behalf of its agents and assigns, will release and forever discharge NHL, its current or former officers, directors, employees, agents, shareholders, affiliates, assigns and successors from any and all claims, actions, demands or causes of action including penalties or interest against any of them, either civil or criminal, as regards Medicaid reimbursement [for certain cholesterol and iron tests] between January 1, 1987 and November 30, 1992, except that nothing contained in this Settlement Agreement shall preclude the state Medicaid program from seeking recoupment of payments made [for certain cholesterol tests] during the period covered by this Settlement Agreement, subject to the understanding that NHL will contest any such recoupment action on the grounds that such payments were appropriate. The Settlement Agreement also provides: The state of Florida agrees that neither the Settlement Agreement nor any federal criminal conviction or other sanction of the corporation or a current or former officer or employee of NHL as regards claims for Medicaid reimbursement [for certain cholesterol and iron tests] [b]etween January 1, 1987 and November 30, 1992 will be the basis for a state exclusion of NHL from the Florida Medicaid program. NHL is a company that provides laboratory testing nationally and receives payment for many of its services from government sources, such as Medicaid, Medicare, or CHAMPUS. CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services. During the period of 1987 through 1992, NHL supplied certain cholesterol and iron testing, in addition to that specifically requested by the health-care provider, at little or no cost to the health-care provider. But NHL invoiced various government payors at higher rates. On December 18, 1992, NHL entered guilty pleas to two counts of criminal fraud involving these practices as they concern the CHAMPUS program. These pleas were the bases of a conviction and sentence that included a criminal fine of $1,000,000. One or two former officers entered guilty pleas to charges of criminal fraud involving these practices as they concern the Medicaid program. As part of the settlement, NHL paid the United States the sum of $100,000,000. At the same time, NHL was negotiating with various states, including Florida, with respect to the above-described billing practices. On December 8, 1992, the Director of the Medicaid Fraud Control Unit in the Florida Office of the Auditor General wrote a letter to NHL confirming a proposed settlement. The conditions of the settlement are incorporated in the above- described Settlement Agreement. On December 17, 1992, the Assistant Secretary for Medicaid in HRS mailed a letter to NHL agreeing that HRS would not take administrative action for the above-described cholesterol and iron claims submitted for reimbursement by NHL to the Florida Medicaid program. NHL did not inform the Department of Management Services of the guilty plea, conviction, and $1,000,000 criminal fine. However, based probably on information received in early February 1993 from another governmental entity in Florida, the Department of Management Services, on February 8, 1993, sent a letter to NHL advising it that the Department had received information that NHL had been convicted of a public entity crime and requesting copies of the charges and final court action. NHL complied and the Department's investigation is continuing. On February 18, 1993, HRS Deputy Secretary for Health, sent a memorandum to all of the County Public Health Units directors and administrators advising them of concerns about laboratory fraud and attaching a recent report concerning the NHL case. The report described the NHL guilty pleas, conviction, and sentencing, as well as the business practices that led to the prosecution. By memorandum dated March 18, 1993, HRS Assistant Secretary for Medicaid informed HRS Depute Secretary for Health that the Auditor General had entered into the Settlement Agreement. The memorandum states that, on December 17, 1992, the Assistant Secretary signed an agreement with NHL not to terminate it from the Florida Medicaid program, which was the "same treatment afforded many other providers--including [County Public Health Units]--who overbilled the Medicaid program. The Assistant Secretary's memorandum describes the settlement as requiring NHL to make "full restitution," although the $1.4 million in restitution involves only the iron test and the State of Florida and NHL may still litigate whether any reimbursement is due for the cholesterol tests. The failure of NHL to check the second alternative on the Public Entity Crime Affidavit did not confer an economic advantage on NHL in the subject procurement. The material attached to the affidavit sufficiently informed HRS of the criminal conviction of NHL. Likewise, the omission of any mention of CHAMPUS claims in Paragraphs two and three of the Settlement Agreement did not confer any economic advantage on NHL in the procurement. The purpose of mentioning only Medicaid in the Settlement Agreement is that Florida has no jurisdiction over the CHAMPUS program. NHL was concerned only that Florida not terminate NHL's participation in the program over which Florida had jurisdiction--the Medicaid program. These references to "Medicaid reimbursement" are merely descriptive and are not intended to limit the scope of the exoneration purportedly effectuated in the Settlement Agreement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the bid protest of Continental Medical Laboratory, Inc. ENTERED on August 24, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3951BID Treatment Accorded Proposed Findings of Respondent and Intervenor 1-8 and 11: adopted or adopted in substance. 9-10 and 12-15: rejected as subordinate. 16-31: adopted or adopted in substance. 32-37: rejected as subordinate and irrelevant. 38-43 and 45-48: rejected as irrelevant and legal argument. 44: adopted. 49-50: adopted as to absence of material variations. 51: rejected as subordinate and recitation of evidence. Treatment Accorded Proposed Findings of Petitioner 1-14 and 16-17: adopted or adopted in substance. 15: rejected as legal argument and unsupported by the appropriate weight of the evidence. 18-21: rejected as subordinate, repetitious, and legal argument. 22-27: adopted in substance. 28: rejected as irrelevant. 29 (first sentence): rejected as repetitious and irrelevant. 29 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 30: adopted, but the period of the delay of DMS review in this case was too short to make any difference. 31: rejected as unsupported by the appropriate weight of the evidence with respect to a delay of such a short duration. 32: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133. 33: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133, at least under the facts of the present case. 34: rejected as irrelevant. 35: rejected as legal argument and unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Geoffrey Kirk Adorno & Zeder, P.A. 2601 S. Bayshore Dr., Ste. 1600 Miami, Florida 33133 Morton Laitner, District Counsel District 11 Legal Office 401 NW 2d Ave., Ste. N-1014 Miami, Florida 33128 Thomas F. Panza Seann Michael Frazier Panza, Maurer 3081 E. Commercial Blvd., Ste. 200 Ft. Lauderdale, Florida 33308 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner’s request for an exemption pursuant to Chapter 435, Florida Statutes, should be granted.
Findings Of Fact Mr. Saunders seeks an exemption for employment in a position for which a security background check is required pursuant to Sections 397.451 and 435.04, Florida Statutes. Presently, Mr. Saunders is employed as an intern human service worker at Reliance House, an adult residential facility located in Panama City, Bay County, Florida. In addition to working at Reliance House, Mr. Saunders is enrolled at Gulf Coast Community College working toward a degree as a Certified Addition Associate Professional. Mr. Saunders sought this exemption so that he could work with children receiving substance abuse services. In 1990, Mr. Saunders was charged with and plead nolo contendere to the charges of burglary, possession of burglary tools, and carrying a concealed weapon. Mr. Saunders was placed on two years' probation. In 1991, Mr. Saunders pled guilty to the charges of burglary of a structure, attempted burglary of a structure, grand theft, criminal mischief, and burglary of a business. In 1992, Mr. Saunders was charged with burglary of a liquor store. Mr. Saunders testified that the burglary charge was reduced to a charge of criminal trespass and that he remained under court supervised probation until October, 1996. Mr. Saunders expressed remorse for his criminal behavior and accepted complete responsibility. He also believes that he shares some of the same problems that are exhibited by the residents of Reliance House and that he would be a good role model because he is attempting to correct his life. Christiane LeClair is a background screening coordinator employed by the Department of Children and Families. As part of her duties, Ms. LeClair reviews employment applications to determine if an applicant is worthy of a position of special trust. Ms. LeClair determined that Mr. Saunders was not qualified because of his conviction of grand theft. She also noted that Mr. Saunders has been released from supervision of the courts for only three months and that it is too early to determine if he has been rehabilitated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order and therein DENY Mr. Saunders’ request for an exemption.DONE and ENTERED this 12th day of March, 1997, at Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997.
The Issue The issue presented is whether Petitioner James Joseph Richardson has met his burden of proving actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact On October 25, 1967, Petitioner's wife prepared a breakfast of grits for their seven children. In a separate pot she prepared the children's lunch of beans, gravy, rice, and hogs head meat. She also fried some fresh chicken which she used to make sandwiches for her and Petitioner's lunch. She and Petitioner then left to get a ride to the grove where they worked picking fruit. It was their routine for Petitioner's wife to cook the food. The eldest child, eleven-year-old Betty Jean Bryant, would later serve it to all the children after the Richardsons left for work. It is not clear whether the children actually ate their breakfast grits that day. The school-age children went to school while the younger children remained at home. It was the routine for Petitioner's neighbor Betsy Reese to look after them. Petitioner's family and Betsy Reese and her children lived in the same structure, assumedly similar to a duplex. There was a common porch across the front. There was also a shed in the back yard. The school-age children returned to the home at lunchtime. Reese divided the food in the second pot into seven equal portions, and the children ate lunch. Right after the children returned to school after lunch, they began exhibiting terrible symptoms, such as leaking from their orifices, twitching, and rigidity. Teachers began grabbing the Richardson children and rushing them to the hospital. One of the teachers, knowing there were younger children at home, drove to the Richardson home. Those children were on the shared porch, displaying the same symptoms. Reese was sitting on the porch, holding one of the children. The teacher took them to the hospital. Petitioner and his wife were summoned to the hospital. Six of the children died that same day, and the seventh child died early the next morning. At the hospital, medical personnel did not know what substance was causing the illness and deaths. Sheriff Frank Cline went to the Richardson home and conducted several searches of the home and the shed attempting to find what had poisoned the children. When Petitioner and his wife arrived at the hospital, Cline obtained from Petitioner the key to the refrigerator and searched again. The next morning Reese and Charlie Smith, who was described as the town drunk, found a bag of parathion, a highly- toxic insecticide, in the shed behind the house. Cline and his deputies had searched the shed approximately four times during the day the children became sick and Cline had searched the shed by himself late that night, and no bag of parathion had been seen by them. It was determined that parathion was present in the pot the grits were cooked in, the pot the lunch was cooked in, the frying pan the chicken may have been cooked in, flour, corn meal, sugar, and other substances found in the refrigerator. It was also determined that parathion is what killed the children. Petitioner had a key to the refrigerator as did his wife. Indications are that a third key was left on the refrigerator for the babysitter's use. Petitioner was tried for the first degree murder of the eldest child Betty Jean Bryant and was convicted. The jury did not recommend mercy, and he was sentenced to death. His conviction was reviewed by the Supreme Court of Florida. Richardson v. State, 247 So. 2d 296 (Fla. 1971). Petitioner's death sentence was commuted to life when Florida's death penalty was held to be unconstitutional the following year. In October 1988, 21 years after the seven children were murdered, the official file, which had been stolen ten years earlier from the office of the assistant state attorney who had prosecuted Petitioner, appeared in the office of the Governor of the State of Florida. Governor Bob Martinez ordered the Florida Department of Law Enforcement (FDLE) to investigate the disappearance and re-appearance of the file and accompanying information. That investigation resulted in new information and admissions surrounding the circumstances leading to the arrest and conviction of Petitioner. The Governor entered an Executive Order on July 31, 1989, appointing Janet Reno, State Attorney for the Eleventh Judicial Circuit of Florida, to provide prosecutorial assistance to FDLE. That Executive Order further directed FDLE to continue its investigation into all statements and evidence concerning Petitioner's arrest and conviction and to also investigate any violations of the criminal laws or misconduct by public officials relative to the events surrounding the deaths of the children and the arrest and conviction of Petitioner. On February 13, 1989, another Executive Order, amending the first, was signed by the Governor assigning State Attorney Reno to the Twelfth and Twentieth Judicial Circuits to discharge the duties of the State Attorneys in those Circuits relating to the investigation and prosecution of Petitioner's case. On March 31, 1989, a third Executive Order was signed. It amended the first two and recited that Reno and FDLE had reported their findings to the Governor and that Reno had also advised the Governor that Petitioner had filed a motion for post-conviction relief in the Circuit Court for the Twelfth Judicial Circuit. The Executive Order directed Reno to assume and discharge the duties of the State Attorney relating to any post-conviction proceedings involving Petitioner. A fourth Executive Order was then entered amending the first three by adding to Reno's duties consideration of any further prosecution of Petitioner. As a result of the extensive investigations conducted by Reno and FDLE, Reno joined in Petitioner's pending motion for post-conviction relief. Petitioner's request that his conviction and sentence be vacated was granted, and Petitioner was released from prison. Reno also made the decision that Petitioner would not be re-tried for the murder of Betty Jean Bryant and would not be prosecuted for the murders of the six other children. On May 5, 1989, Reno issued a 35-page Nolle Prosse Memorandum explaining in detail the evidence she had reviewed, the conflicting evidence she had considered, the apparent- perjured testimony that had been given at Petitioner's trial, and the conflicting witness statements which the State had before trial but had not disclosed to Petitioner's attorneys despite a court order to do so. The Memorandum discussed additional problems she had encountered because the physical evidence from the trial 21 years earlier had been misplaced or destroyed, a witness had later recanted his trial testimony, and key witnesses had died since the trial had taken place. Further, as a result of the publicity surrounding her investigation a number of persons had come forward claiming to have evidence, but they had never come forward during the initial investigation. Reno and the two Assistant State Attorneys who worked with her on her investigation determined that in evaluating whether Petitioner should be given post-conviction relief and whether Petitioner should be re-tried, they would only consider the files, records, and evidence that existed at the time that Petitioner was tried. They considered the evidence that had not been disclosed to anyone for 21 years to be unreliable. Some of it was also conflicting. She signed the Nolle Prosse Memorandum as did the two Assistant State Attorneys Don L. Horn and Richard L. Shiffrin. At the final hearing in this cause Don Horn testified extensively as to the contents of the Memorandum. Although he, Shiffrin, and Reno had discussed the misconduct they discovered on the part of the Sheriff and the prosecuting attorneys, they knew that the statute of limitations prevented taking action against those public officials, so the Memorandum did not discuss any action to be taken against them. It only considered the evidence against Petitioner. The Memorandum concluded that a "totally inadequate and incomplete investigation" into the deaths of the seven children had been conducted. Obvious leads had not been pursued, inconsistencies were not resolved, and standard investigative procedures had not been followed. The Memorandum further opined that at the time that Petitioner was charged with murder, the State did not have sufficient evidence to prove his guilt beyond and to the exclusion of a reasonable doubt. The Memorandum concluded that Petitioner "was probably wrongfully accused" based upon the evidence that existed at the time. Three years later a 260-page Memorandum Opinion prepared by United States Attorney Robert Merkle and indicating a need for further investigation into the 1968 prosecution of Petitioner was presented to the Treasurer of Florida. The Opinion, which was not admitted in evidence, was described as a "scathing indictment" of Reno's investigation. As a result, Governor Lawton Chiles issued a confidential Executive Order on October 16, 1992, appointing State Attorney Reno to further investigate all matters pertaining to or arising from the issues raised in the Opinion involving Petitioner's prosecution. On October 30, 1992, the Governor issued a second Executive Order deleting the provisions of his prior Order requiring that it be sealed and confidential. Assistant State Attorney Richard L. Shiffrin, who participated in Reno's first investigation, and Gertrude M. Novicki, Reno's Chief Assistant for Special Prosecutions, were assigned to conduct this investigation. Both of those Assistant State Attorneys signed the Response of the State Attorney of the Eleventh Judicial Circuit. The Response is not dated but a word-processing notation suggests it may have been issued on or about April 30, 1993. At the final hearing, Novicki testified regarding her Response. Rather than responding to or explaining each of the details set forth in Merkle's Memorandum Opinion, Novicki and Shiffrin re-examined the propriety of both the vacating of the original judgment of guilty and the decision to enter a nolle prosse. In doing so, they reviewed the original prosecution in light of the evidence at trial and of the law as it existed in 1968 and also reviewed the ability to re-prosecute Petitioner in light of the evidence currently available and admissible. The Response concluded that the Order granting Petitioner's motion to vacate his conviction and sentence was supported by the facts and the law and that the decision to enter a nolle prosse reached in 1989 was proper. The Response's summary states that the physical evidence against Petitioner did not establish guilt beyond a reasonable doubt, the testimonial evidence as to Petitioner's admissions of culpability were of dubious admissibility and value, the evidence of motive was equivocal at best, and the decision to enter a nolle prosse was unquestionably correct. The summary ends as follows: "Whether or not [Petitioner] is guilty of this horrible crime is uncertain. What is certain is that proof beyond a reasonable doubt of guilt is lacking." The prior proceedings involving Petitioner and the prior reviews of those proceedings have focused on the criminal law standard of guilty beyond a reasonable doubt. That standard, however, is not applicable to this proceeding. In this proceeding wherein Petitioner is seeking monetary compensation for his wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that he committed neither the act nor the offense that served as the basis for the conviction and incarceration and that he did not aid, abet, or act as an accomplice to a person who committed the act or offense. Further, he must prove his actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. Petitioner testified that he did not poison his children, that he did not kill his children, and that he never told anyone that he did. He also testified that he did not aid or assist anyone in poisoning or killing his children. In order to provide verifiable and substantial evidence in support of his testimony that he is innocent, Petitioner has taken two approaches. The first is by relying on the investigation detailed in the 1989 Nolle Prosse Memorandum and the testimony of Don Horn, one of the authors. (In its defense, the State offered the 1993 Response and the testimony of Gertrude Novicki, one of its authors.) In so doing, Petitioner has offered clear and convincing evidence that the investigation leading up to Petitioner’s prosecution and conviction was incomplete. The investigation revealed conflicting evidence about whether Petitioner had obtained life insurance policies on his children the night before they were murdered, which he had not, and whether Petitioner believed that he had. The investigation did not determine how the parathion got into the pots and skillet and various food products in the refrigerator or when. The investigation appeared to focus only on Petitioner as a suspect and not also on others whose involvement was suspicious. Toward the end of the investigation and prior to Petitioner’s criminal trial, the prosecutors wrote memos expressing concern about the weakness of their case and their possible inability to present even a prima facie case. After those memos were written, the Sheriff produced three jailhouse informants to testify that Petitioner admitted to them his crimes. They also gave statements that Petitioner said he thought that Reese did it and gave details of different motives she might have had. Rather than resolving the conflicting statements, the prosecution withheld the conflicting statements from the defense. The Nolle Prosse Memorandum discusses these statements and informants and finds that one of the jailhouse informants recanted his testimony after Petitioner’s trial and one was drunk when he testified. The third one, whose statements were given under circumstances that made them highly doubtful, died before the trial, and his testimony given at the preliminary hearing was given to the jury in the form of five witnesses who testified as to their recollections of his testimony. The informants were not the only ones to provide perjured testimony at Petitioner’s trial; the Sheriff also appears to have done so. A review of the Nolle Prosse Memorandum and the detailed evidence it discusses makes it clear that Petitioner was wrongfully accused based upon the evidence and lack of evidence the prosecution had gathered. It is further clear that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. It is further clear that re-trying Petitioner would be fruitless because the evidence available 21 years after the murders was insufficient: the physical evidence was missing or destroyed, many of the key witnesses were dead, and the evidence that might have been admissible for a re-trial was conflicting. However, the inability of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of committing the murders or aiding in the commission. Petitioner’s second approach to providing verifiable and substantial evidence of his actual innocence is attempting to show that Reese, not the Petitioner, murdered the children. The 1989 investigation showed that, at the time the Richardson children were poisoned, Reese was on parole for killing her second husband with a gun. Although there was also a rumor that she had poisoned her first husband, no evidence was found to support that rumor. Parenthetically, there was also a rumor that Petitioner killed his three other children in Jacksonville, but that was also untrue. Similarly, there was a rumor that Sheriff Cline fathered Reese’s granddaughter and that was why he steered the investigation away from her. The blood tests of all concerned done as part of the 1989 investigation proved that rumor also untrue. Petitioner relies also upon the facts that Reese was the last person in the Richardson home on the day in question, the person who served the children the poisoned lunch, and the person who found the parathion in the shed. Her unconcerned behavior while the Richardson toddlers were exhibiting horrible symptoms on her porch and her lack of concern about whether her children who were playing there might be at risk from whatever was making the Richardson children so sick are suggested to be evidence that she knew why the Richardson children were sick and why her children would not be. It was also suggested that she must have been the murderer since her third husband had gone to Jacksonville with Petitioner and his wife but they had returned without Reese’s husband who never did return to her. Petitioner relies heavily on evidence which he suggests constitutes admissions of her guilt by Reese. The 1988 investigation considered an affidavit by one certified nursing assistant and a taped interview of another, both of whom worked at a nursing home where Reese became a patient in 1986. The affidavit by Belinda Romeo asserts that Romeo asked Reese on more than 100 separate occasions if she killed the seven Richardson children, that Reese replied that she did, and that Reese was competent at the times Romeo asked that question. On the other hand, the transcript of a taped interview of Doris Harris, who was present several times when Romeo questioned Reese, is clearly contrary to that affidavit. Harris states that by the time Reese was admitted to the nursing home, she was incontinent, unable to walk, unable to feed herself, only “half way aware,” unable to say what day or year it was, "back to a child's state," and suffering from Alzheimer’s. When Romeo would ask if she killed the children, she would say that she killed them, say the name Charlie, and then lapse into incoherent mumbling. Harris believed that Reese was saying she killed them because she was the one who fed them the poisoned food, and not because she was the one who put the poison in the food. Reese’s “admissions” are, therefore, ambiguous and not trustworthy. Petitioner also introduced into evidence a 1988 affidavit of Richard H. Barnard, the Chief of Police who began an investigation into the children’s deaths. After he got Reese to admit she was in the Richardson home that day and served the children their lunch, he was removed from the investigation by the “Governor’s office” in a phone call which he believes Sheriff Cline instigated. His affidavit undermines the statements of the jailhouse informants, expresses his concern that Sheriff Cline may have tampered with the jury, and states his opinion that Sheriff Cline framed Petitioner. He concludes with his opinion that Petitioner was innocent and Reese was guilty. The hearsay evidence and suggestions that Reese was guilty of the murders do not constitute verifiable and substantial evidence of Petitioner’s innocence. Opinion testimony does not constitute verifiable and substantial evidence of Petitioner's innocence. The Nolle Prosse Memorandum and the Response do not constitute verifiable and substantial evidence of Petitioner’s innocence. The testimony of Horn and Novicki as to what they considered during their investigations does not constitute verifiable and substantial evidence of Petitioner’s innocence. Lastly, Petitioner’s own testimony denying his guilt is not verifiable and substantial evidence of his innocence. Simply put, the evidence in this proceeding does not establish Petitioner’s actual innocence. Since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” Petitioner argues that the definition should be that based upon the evidence it is more likely than not that no reasonable juror would have convicted him. That definition is found in Supreme Court of the United States and Supreme Court of Florida cases. Bousley v. United States, 523 U.S. 614 (1998); Schlup v. Delo, 513 U.S. 298 (1995); Tompkins v. State, 994 So. 2d 1072 (Fla. 2008); Mills v. State, 786 So. 2d 547 (Fla. 2001). Petitioner’s argument is not persuasive. All of those cases involved motions for post-conviction relief, not claims for money damages. That definition of actual innocence was likely utilized when Petitioner was granted post-conviction relief by having his conviction and sentence vacated and being released from prison, which is the relief which results from meeting that definition. That definition of actual innocence tests the legal sufficiency of evidence. The Statute regulating this proceeding does not consider legal sufficiency; rather, it considers factual sufficiency by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. A review of the two investigations of Petitioner’s prosecution clearly shows an absence of evidence proving Petitioner guilty beyond a reasonable doubt. However, a review of the two investigations does not show that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that he is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing his Petition. DONE AND ENTERED this 21st day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of August, 2009. COPIES FURNISHED: Robert I. Barrar, Esquire Law Offices of Ellis Rubin & Robert I. Barrar 6619 South Dixie Highway, No. 311 Miami, Florida 33143 Raul C. De La Heria, Esquire 2100 Coral Way, Suite 500 Miami, Florida 33145 Dennis Nales, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237 Earl Moreland, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237
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.
