Findings Of Fact On November 22, 1989, T. L. James & Company, Inc. was convicted of conspiracy to suppress and eliminate competition. This is a public entity crime. T. L. James executed a Public Entity Crimes Affidavit on July 24, 1994. On the affidavit T. L. James disclosed the conviction. Pursuant to Section 287.133, Florida Statutes, the Department of management Services (DMS) shall investigate public entity crimes to determine if the convicted company should be placed on the convicted vendors' list. After receiving the affidavit from T. L. James, DMS conducted an investigation and discovered mitigating factors as defined and listed in Section 287.133, Florida Statutes. These factors are: payment of fines and damages totalling $600,000, cooperation with the officials criminally investigating and prosecuting the case, cooperation with DMS' investigation, instituting safeguards in the bid estimation process to prevent further irregularities, and providing full and accurate notice. All other facts stipulated to by the parties pursuant to the Joint Stipulation previously filed in this case are hereby adopted and incorporated by reference.
Findings Of Fact On June 19, 1991, Dale McClellan was convicted of a one count violation of the Sherman Anti-Trust Act for conduct that occurred on or before August 8, 1986. Dale McClellan's conviction arose out of an investigation initiated by the Florida Attorney General in 1987 into possible bid rigging of school requirements contracts in Florida by thirteen dairies and distributors. In 1988, the Attorney General filed a civil action against these 13 dairies and distributors. In 1987, the United States Attorney General began an investigation into the same conduct pursuant to the Sherman Anti-Trust Act. Pursuant to paragraphs 287.133(3)(a) and (b), Florida Statutes, M & B Products, Inc. and Dale McClellan made timely notification to the Department of Management Services (DMS) and provided details of the convictions. On September 6, 1995, DMS issued a notice of intent pursuant to Subparagraph 287.133(3)(e)1., Florida Statutes. On September 29, 1995, pursuant to Subparagraph 287.133(3)(e)2., Florida Statutes, M & B Products, Inc. and Dale McClellan timely filed a petition for formal administrative hearing pursuant to subsection 120.57(1), Florida Statutes, to determine whether it is in the public interest for M & B Products, Inc. and Dale McClellan to be placed on the State of Florida Convicted Vendor List. Subparagraph 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. Section 287.133(3)(e)3.e., Florida Statutes, establishes "cooperation with a State or Federal investigation into a public entity case as a mitigating factor against placement on the convicted vendor list." Dale McClellan was notified of an Investigative Demand by the Attorney General's Office in 1987. On December 14, 1987, Phillip Hall, Esquire, a representative of the Attorney General, State of Florida, reviewed records of two companies operated by Dale McClellan. These records were voluntarily produced by Mr. McClellan. Subsequent to Phillip Hall reviewing business records of Dale McClellan, copies of a portion of said records were voluntarily provided to the Florida Attorney General's Office. Dale McClellan met with representatives of the Attorney General's Office in January of 1988 and gave a statement in cooperation of their investigation, to Richard Arnold, Esquire, and Assistant Attorney General Jerome Hoffman. In November 1987, Dale McClellan cooperated with the Federal Grand Jury in Atlanta, Georgia, producing ten (10) boxes of records in response to a subpoena directed at his business. In March 1991, prior to his conviction in Federal Court, Dale McClellan cooperated with Federal Prosecutors at a meeting arranged by them in Atlanta, Georgia. Section 287.133(3)(e)3.d., Florida Statutes, provides prompt payment of any damages or penalty as the result of the conviction as a mitigating factor against placement on the convicted vendor list. Dale McClellan paid a penalty of $2,500.00 imposed by Judge William Castagna, on June 19, 1991. Section 287.133(3)(e)3.e., Florida Statutes, establishes the nature and details of the public entity crime as a mitigatory factor. Dale McClellan's violation consisted of supplying milk to 11 schools in Hillsborough County, Florida, through his company, M & B Dairy. Dale McClellan in the 1985-86 school year supplied 210 cases of half-pint milk cartons per day at a gross profit of less than one cent per carton. M & B Dairy went out of business in 1988. Pet, Inc., Southland Corporation, Borden, Inc. and Land-O-Sun Dairies, Inc., defendants in the federal court case (each convicted and fined several million dollars, sold tens of millions of dollars worth of milk to schools and federal government installations. Dale McClellan's involvement, in comparison, was very minor. Section 287.133(e)(e)3.e., Florida Statutes, establishes disassociation from other persons or affiliates convicted of public entity crimes as a mitigating factor in determining whether to place a person or entity on the convicted vendor list. Dale McClellan has not associated with any person convicted of a public entity crime. Section 287.133(3)(e)e.g., Florida Statutes, establishes self policing by the person to prevent public entity crimes as a mitigating factor in determining whether to place a person or entity on the convicted vendor list. M & B Products, Inc. has instituted policies that prohibit any employee from discussing, even casually, the bidding on or bidding strategies concerning school requirements contracts. In addition, Dale McClellan has resigned as an officer in M & B Products, Inc. Section 287.133(3)(e)e.j., Florida Statutes, states that the need of public entities for additional competition in the procurement of goods and services in their respective markets is a mitigating factor in determining whether to place a person on the convicted vendor list. Since the conclusion of the State and Federal investigation, many suppliers and distributors have discontinued business and there is a great need for competition in this area. M & B Products, Inc. is a significant factor in providing such competition and has helped lower prices in the areas where it supplies his product. Section 287.133(3)(e)3.e., Florida Statutes, establishes good citizenship as a mitigating factor, in determining whether to place a person on the convicted vendor list. In May 1991, Dale McClellan received a Certificate of Recognition from the Hillsborough County Sheriff's Office for his support of law enforcement and crime prevention. Dale McClellan has assisted persons addicted to alcohol by helping through a church sponsored Alcoholics Anonymous program, and helped found "301 House," an AA program in East Hillsborough County. He is still active in helping and counselling alcoholics.
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.
Findings Of Fact Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.
The Issue The issue in this case is whether the Petitioner should be placed on the convicted vendor list.
Findings Of Fact On May 31, 1990, Borden pled guilty to commission of a public entity crime, as defined by Section 287.133(1)(g), Fla. Stat. (Supp. 1996), for: a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within Peninsular Florida, lasting from the early 1970's through July, 1988; a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within the Florida Panhandle, lasting from the early 1970's through July, 1988; and a conspiracy to rig bids for the award and performance of contracts to supply dairy products for use at federal military installations within Peninsular Florida and the Commonwealth of Puerto Rico, and at the Kings Bay Naval Submarine Base in Georgia, lasting from the early 1970's through July, 1988. As a corporate entity, Borden was culpable of the crimes committed by its employees or agents. However, as set out in more detail in the Joint Stipulation, when the crimes came to the attention of Borden's corporate management, Borden cooperated with state and federal investigations and prosecutions of the crimes, promptly terminated the employees and disassociated itself from individuals implicated in the crimes, and promptly paid the damages and penalties resulting from Borden's conviction. As set out in more detail in the Joint Stipulation, Borden notified the Department of Management Services within 30 days of its conviction. As set out in more detail in the Joint Stipulation, in addition to terminating the employees implicated in the crimes, Borden has instituted self- policing to prevent public entity crimes. As set out in more detail in the Joint Stipulation, after a period of suspension by the Defense Logistics Agency of the federal government in relation to Borden's public entity crime, the suspension was terminated, and Borden's Dairy Division has been reinstated as a qualified government contractor. As set out in more detail in the Joint Stipulation, Borden has demonstrated its good citizenship with the exception of the public entity crime of which it was convicted. As set out in more detail in the Joint Stipulation, other than the public entity crime conviction itself, there was no evidence that it is in the best interest of the public to place Borden on the convicted vendor list.
The Issue The issues to be determined in this case are whether Respondent has failed to maintain the qualifications required for a correctional officer pursuant to Section 943.1395(7), Florida Statutes (2006),1/ and Florida Administrative Code Rule 11B- 27.0011(4)(b), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified by the Department as a correctional officer in the State of Florida, having been issued Correctional Certificate #170241. Respondent and Candida Nowlin are engaged and live together. They have lived together since 2002. Ms. Nowlin has two children from a previous relationship and she and Mr. Saria have a child together. At the time of the events giving rise to these proceedings, the couple was under a great deal of stress because of a serious accident involving one of Ms. Nowlin's children. On the evening of November 6, 2006, Mr. Saria and Ms. Nowlin had an argument. She asked him to leave, and he refused. In his anger, he slammed a cordless phone in their home against the kitchen counter. However, there is no competent evidence that he struck or grabbed her, or threw her into a wall. The only competent testimony presented is that he touched her arms in order to move her out of his path as he went to another room in the home, but did not harm her in any way. Ms. Nowlin felt that she and Mr. Saria needed some time apart, so when Mr. Saria refused to leave their home, she went with her young daughter next door to her neighbor's home to call the police. Her neighbor, Ms. Epley, was having a dinner party. She noticed that Ms. Nowlin was crying and she let her use her phone, but was distracted by her hostess duties. She did not remember Ms. Nowlin being injured, and Ms. Nowlin did not tell her that Mr. Saria had beaten her up. Ms. Nowlin called the police from Ms. Epley's home. Two officers came to the home, then-officer Barraclough and Sergeant Spears. They interviewed Ms. Nowlin, Ms. Epley, and Mr. Saria, and arrested Mr. Saria and took him away. After they had removed Mr. Saria from the home, the two officers completed statements from both Ms. Epley and Ms. Nowlin. Officer Barraclough testified that he saw scratches and red marks on Ms. Nowlin's arms. However, his testimony was contradicted by all other witnesses who testified, and is not credited. Sergeant Spears, who did not testify, took Ms. Nowlin's statement. While she was doing so, Ms. Nowlin's mother came to the home. Her testimony, which is credited, is that Ms. Nowlin had no bruises or marks on her arms and that Ms. Nowlin was primarily upset at that point because Mr. Saria had been arrested. The only competent evidence of what happened between Ms. Nowlin and Mr. Saria during their argument is the testimony of the two of them. They both deny vehemently that he struck her or engaged in any unwanted touching. They both insist that they had an argument because of the amount of stress they were under, and that the police were called because Ms. Nowlin felt they needed some time away from each other.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 2009, 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 24th day of November, 2009.
