The Issue Whether Respondent committed the violation set forth in the Administrative Complaint; and, if so, what penalty should be imposed?
Findings Of Fact Prior to the hearing, the parties stipulated to the following facts: Respondent was certified by the CJSTC on May 1, 1987, and issued Correctional Certificate Number 59414. On or about January 3, 1998, the Respondent's vehicle was parked in the parking lot of the Quality Outlet Mall. An officer discovered Ella Turner seated in the front passenger seat of the Respondent's vehicle. There were no other occupants in the vehicle. Respondent then walked up to the vehicle. Respondent consented to a search of her vehicle. An officer located a make-up bag in the passenger compartment of the vehicle. The make-up bag belonged to Respondent. A plastic baggie containing 13.5 grams of marijuana was found in the make-up bag. Respondent gave a sworn statement to DOC Officer Hilary Johnson on January 20, 1998. Respondent resigned from the DOC on January 28, 1998. Since that time, Respondent has not worked in a sworn position. Based on the testimony and other evidence submitted, including a certified record from the Department of Law Enforcement disclosing the criminal history of Ms. Turner, the following additional findings of fact are made: Respondent was not present when the officers first arrived at the location of Respondent's vehicle. The make-up bag in which the marijuana was found was located in the vehicle in the front passenger compartment near where Ms. Turner was seated. Earlier that day, another female passenger in the vehicle had access to and possession of the make-up bag. The baggie containing the marijuana was never analyzed for fingerprints. Respondent did not say or do anything to indicate knowledge of the presence of the marijuana other than to openly admit ownership of the vehicle and make-up bag. Respondent has been a DOC officer for 13 years, has never tested positive for marijuana or other illegal drugs, was never asked to submit to a drug test in connection with this case, and has been the subject of only three relatively minor disciplinary actions over that 13-year period. Close friends and co-workers of Respondent have no knowledge that Respondent has ever been involved with illegal drugs alcohol or tobacco.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint against Respondent. DONE AND ENTERED this 21st day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 21st day of July, 1999. COPIES FURNISHED: Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 R. Spencer Rhodes, Esquire 126 East Jefferson Street Orlando, Florida 32801 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Mr. Stills filed a sworn application for eligibility to sit for the licensure examination for limited surety agents with the Department of Insurance on February 24, 1992. The application contains these questions: Q: Have you ever been charged with or convicted of or pleaded guilty of no contest to a crime involving moral turpitude, or a felony, or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered? What was the crime? Where and when were you charged? Did you plead guilty or nolo contendere? Where you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged: If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. Mr. Stills answered "no" to the main question and filed no response to subquestions a through f. Discharging a firearm - 1973 Mr. Stills had been charged with the misdemeanor of discharging a firearm within city limits on September 10, 1973, a violation of Section 790.15, Florida Statutes (1973). The incident occurred in Pensacola, Florida. Mr. Stills accidently discharged a shotgun in an incident involving his father. Mr. Stills had been called to his father's home because of a dispute his father was having with a neighbor. His father met him on the back porch, with a shotgun in his hand. Mr. Stills calmed his father, and was able to get him to give him the shotgun. The shotgun was an old one, and as Mr. Stills attempted to unload it, the hammer slipped and the gun accidently discharged. The neighbor called the police, and the charge was filed, and Mr. Stills paid a small fine. Second degree murder - 1984 On May 31, 1984, Mr. Stills was arrested and charged with second degree murder, in violation of Sections 775.087(2) and 782.04(2), Florida Statutes (1983). The arrest arose from an argument which Mr. Stills had with the decedent. On May 24, 1980, Mr. Stills and the decedent had an argument in which the decedent threatened to kill Mr. Stills. Mr. Stills then left. Later that afternoon, the decedent approached Mr. Stills at another location, and appeared to reach for something. Out of fear generated by the decedent's earlier threat Mr. Stills had already armed himself, and when the victim made a threatening movement, Mr. Stills shot him out of fear for his own safety. He was arrested, charged with second degree murder, but acquitted in a jury trial on March 21, 1985 based on his plea of self defense. Firearms chares - 1987 Mr. Stills was charged on April 15, 1987, in an Information with the felony of carrying a concealed firearm, in violation of Section 790.01(2), Florida Statutes (1987), and the misdemeanor of improper exhibition of a firearm, in violation of Section 790.10, Florida Statutes (1987). On that date, Officer John Gonzalez responded to a request for police assistance; the call said a man was displaying a firearm in a threatening manner. Officer Gonzalez arrived at the location given to him, and saw Petitioner, who generally fit the description of the man allegedly waiving a firearm about. Mr. Stills was then seated in an automobile. He was not waiving a gun about or threatening anyone. Officer Gonzalez approached him from the passenger side of the car, where he observed a revolver sitting on the passenger seat; the gun was loaded. He then arrested Mr. Stills. The charge of carrying a concealed firearm was dismissed by the court. Mr. Stills entered a plea of guilty to the misdemeanor of exhibiting a firearm on July 20, 1987. After exchanging correspondence with the Department, Mr. Stills amended his application, disclosing the charges and sending the necessary backup information required by the application form. He stated he had misread the question as requiring only information on felony convictions, and he had none. When the Department denied Mr. Still's application it gave these specific reasons: He had been charged with discharging a firearm within the City of Pensacola on September 17, 1973. He had been charged with second degree murder on May 21, 1984, but had been found not guilty on March 21, 1985. On April 15, 1987, he had been charged with carrying a concealed firearm and improper exhibition of a firearm, that he had pled guilty to the misdemeanor charge and been placed on three months probation yet Mr. Stills had failed to acknowledge any of these charges on his application. The Department relied on Section 648.32(2)(f), Florida Statutes, and 648.45(2)(e), Florida Statutes, to deny his application.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department enter a Final Order finding Mr. Stills eligible for licensure as a limited surety agent, and permitting him to sit for the licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. 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 31st day of March 1993. APPENDIX The following constitute my rulings on findings proposed by the Department as required by Section 120.59(2), Florida Statutes. Adopted in Findings of Fact 1. Adopted in Findings of Fact 2. Adopted in Findings of Fact 3. Adopted, as modified in Findings of Fact 4. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 6. Adopted in Findings of Fact 7. Adopted in Findings of Fact 7. Adopted in Findings of Fact 9. COPIES FURNISHED: James A. Cassidy, Esquire 6121 Palm Beach Lakes Boulevard Suite 403 West Palm Beach, Florida 33409-0223 Daniel T. Gross, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The first issue to be determined is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011), as alleged in the Administrative Complaint. If so, the second issue for consideration is what penalty should be imposed for such a violation.
Findings Of Fact At all times relevant to this proceeding, Respondent was a certified law enforcement officer, having been issued Law Enforcement Certificate Number 194525 by the Criminal Justice Standards and Training Commission. At the time of the incident in question, Respondent was employed by the FHP. For an unspecified time prior to July 11, 2011, Respondent was involved in a relationship with a woman named Tamarah Rasmussen. For some period, she shared his home with him. However, in the weeks or months preceding July 11, 2011, the couple’s relationship had deteriorated, and Respondent wanted it to end. He had, however, allowed her to remain in the home “as a friend.” On July 10, 2011, the couple had a fight, and Respondent left the house. On July 11, 2011, Respondent returned to the home after his work shift, and told Ms. Rasmussen that he wanted their relationship to end. Respondent told her he wanted to sleep in a separate bed, and took the mattress pad off of a bed in a bedroom downstairs and put it on a separate bed upstairs. Ms. Rasmussen reacted by taking the mattress pad off of the second bed and throwing it out the window. Respondent retrieved the mattress pad. Ms. Rasmussen then poured a container of water on the bed where Respondent intended to sleep. Respondent turned on the video function on his cellular phone and asked Ms. Rasmussen about her actions. She responded by telling him he was a fool and an idiot, and that he was crazy. In what can be gleaned from the tape, Respondent asked her to take her things and leave. Instead, Ms. Rasmussen approached Respondent trying to get his phone as he started to go upstairs, and began hitting him. He can be heard on the cell phone recording repeatedly asking her to stop. Ms. Rasmussen repeatedly answered “no,” and “this was good enough for you last night,” and the sound of her striking Respondent can be heard clearly. This altercation occurred as Respondent attempted to retreat up the stairs. At one point, Respondent exclaimed that Ms. Rasmussen had hit him in the face, and Ms. Rasmussen responds, “yeah, I did.” Respondent and Ms. Rasmussen end up in what appears to be a walk-in closet upstairs. At that point, Respondent told Ms. Rasmussen that she was “going down,” and that he would “arrest her myself.” Respondent appeared to be out of breath. Ms. Rasmussen responded by telling him repeatedly that she was not under arrest and he was not arresting her for anything. She told him several times to stop, and to “get off of her,” stating that she could not breathe. Eventually, she told him that he had won, and asked him to help her up. Ms. Rasmussen testified that Respondent dragged her up the stairs, hitting her head on the stairwell on the way up. She testified further that he slammed her against the wall, handcuffed her behind her back, and was sitting on top of her while he did so, and while she pleaded with him to stop. According to her, Respondent hit her several times during the time they were in the closet, and then dragged her back down the stairs by the chain on the handcuffs. She also stated that Respondent threatened to kill her, saying that if he did so he could dispose of her body in the pond on the property and no one would know unless they drained the pond. Respondent, on the other hand, testified that Ms. Rasmussen began hitting him around the head and neck, and he was retreating up the stairs in an effort to get away from her, telling her repeatedly to stop. He testified that once they reached the closet, he told her he was arresting her and placed her hands behind her back in order to handcuff her. When she told him he was not arresting her for anything, he warned her not to “make me Taze you,” and finished placing the handcuffs on her wrists, behind her back. Respondent denied sitting on Ms. Rasmussen, saying that he knelt on one knee with one foot flat on the floor, and with Ms. Rasmussen secured between his legs, as he learned in law enforcement training. While Ms. Rasmussen testified that he dragged her down the stairs of the house and then threw her down the outside steps, Respondent testified that he carried her down the stairs of the home so as not to injure her, but that she was resisting him. While the taped recording contained sounds indicating that Respondent was being hit by Ms. Rasmussen going up the stairs, the same is not true with respect to the descent. Ms. Rasmussen can be heard telling Respondent to stop, but there is no sound that can be attributed to her head banging against the wall or anyone being dragged down the stairs. Once they were both downstairs, Respondent called in a “1024” on his FHP radio, which means “officer in jeopardy, send help as soon as possible.” The consensus of those officers testifying was that this call is rarely used and is the equivalent of “calling the calvary,” because the officer needs help immediately. Both Rasmussen and Respondent exited the home once the 1024 call was placed. Rasmussen testified at hearing that Respondent offered to take the handcuffs off of her and she refused the offer, saying that she wanted the responding officers to “see me exactly this way.” She got in his truck, which was parked near his locked law enforcement vehicle, and shut the door to get out of the rain. Law enforcement responding to the 1024 call were Marcus Bailey, an investigator with the Bay County Sheriff’s Office; FHP Major Eddie Johnson; and Lieutenant Davis Ward of the Bay County Sheriff’s Office. Their arrival at the home was approximately twelve minutes from the call being received by the FHP dispatcher. The Bay County Sheriff’s Office conducted the investigation of the matter, and because a law enforcement officer was involved, the investigation was conducted by supervisors. As a result of the incident, Respondent was placed on administrative duty on July 11, 2012, and terminated from the FHP July 16, 2012. The officers who responded all saw the video of the cell phone recording, which was also played several times during the course of the hearing. While, curiously, two of the three refer to Respondent as “taunting” Ms. Rasmussen at the beginning of the video, the video does not display or record anything that the undersigned could describe as taunting. It portrayed Respondent expressing dismay at Ms. Rasmussen’s behavior; Respondent requesting that she get her things and leave; Ms. Rasmussen’s angry response; the sounds of Ms. Rasmussen hitting Respondent; Responding placing her under arrest and reciting her rights; and Ms. Rasmussen’s angry response and cries for help and for Respondent to let her go. Respondent’s supervisor, Sergeant Ronnie Baker, testified that Respondent was a great employee who went “above and beyond,” and who prior to this incident (which Sergeant Baker did not witness), had no complaints against him. Sergeant Baker, among others, testified that Ms. Rasmussen had a reputation for untruthfulness. The undersigned reviewed the tape several times. It is of limited assistance in deciphering what is, in reality, an event where the only witnesses are the participants, Respondent and Ms. Rasmussen. However, after listening to the tape and observing the demeanor of witnesses (both at hearing and in the tape), Ms. Rasmussen’s account of the incident is simply not credible. The sounds on the tape clearly support the testimony that Ms. Rasmussen was hitting Respondent repeatedly as they went up the stairs. There are no corresponding sounds to support her contention that he slammed her head into the wall or dragged her down the stairs. Moreover, the pictures of Ms. Rasmussen do not clearly depict bruising or swelling consistent with her description of the incident. There are slight red marks on Ms. Rasmussen’s wrists, but they do not provide clear and convincing evidence that he dragged her anywhere, much less down the stairs. The marks on her arms are just as likely to indicate her resisting his efforts to carry her down the stairs. Moreover, her claim that he threatened to kill her and dispose of her body in the pond on the property is totally inconsistent with Respondent’s actions in placing a 1024 request for assistance, and waiting at the front of the property for assistance to arrive. The Administrative Complaint charges Respondent with use of excessive force by slamming Ms. Rasmussen’s head and/or placing handcuffs on the victim tightly and/or dragging her down the stairs while handcuffed. There is no clear and convincing evidence that Respondent slammed Ms. Rasmussen’s head against anything; that he put the handcuffs on her too tightly; or that he dragged her down the stairs while handcuffed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of January, 2013, 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 29th day of January, 2013. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Philip S. Spaziante (Address of record) Sandra Renee Coulter, Esquire Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gerald M. Bailey, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for consideration in this hearing is whether Petitioner was unlawfully discriminated against in employment by Respondent as retaliation for having filed a prior complaint with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Paul Louis Fairbanks, first applied for employment with the Tampa Police Department, (TPD), on December 19, 1988. He was disqualified at that time because he did not meet the Department's visual acuity standards. Nonetheless, he appealed that decision and after a lengthy process, as a part of the settlement, he was allowed to complete the employment process. A part of that process includes an employment interview after which a background investigation is conducted. This includes checking with the professional and personal references provided by the applicant and the development of independent leads which might cast some light on the investigative process. The background investigation of Petitioner was conducted by Herbert C. Anderson, Jr., a retired Lieutenant of Detectives with the Minneapolis, Minnesota, Police Department, and now a civilian investigator with TPD. During the course of his investigation, Mr. Anderson contacted the references provided by the Petitioner, both in Florida and in Baltimore, Maryland, where Petitioner was engaged in police work subsequent to his graduation from college in 1969, to 1974, when, because of his wife's illness, the family moved to Florida. The records of the Baltimore Police Department, show that he was promoted from Patrolman to Police Agent and from Police Agent to Sergeant. Petitioner claims he had the highest scholastic grade in his police academy graduating class and was awarded each promotion at the earliest possible time. It also appears that he did quite well in his firearms qualification and, while employed in Baltimore, received two official commendations. His evaluations ranged from average to excellent as a police officer. As a sergeant, his evaluations ranged from above average to unsatisfactory. By the same token, Petitioner was disciplined four times during the five years he worked in Baltimore. He received three reprimands for failing to appear in traffic court, for having a preventable accident, and for a violation of juvenile custody procedures. His record shows he was reduced in grade from Sergeant to Police Agent for unsatisfactory performance, but Petitioner claims the reduction was the result of his decision to move and the Department's desire to not have him in a sensitive position during his last months of work for fear he might be called back to testify at Department expense. Petitioner claims that when, because of his wife's illness, he decided to move from Baltimore to Florida so his wife could be near her parents, he was given the choice of either resigning immediately as a Sergeant, or taking a reduction in grade and being moved to a less sensitive position. When he declined to do either, he was reduced in grade and the record was made to look as though it was the result of his misconduct. When Petitioner returned to Florida in July, 1974, he went to work for the Sarasota County Sheriff. During the period before he was terminated in November, 1978, he received several letters of thanks from citizens, but also letters of reprimand, suspensions and requests from supervisors for either demotion or dismissal. During this period, the State Attorney's office notified the Sheriff that Petitioner's testimony in court was being questioned and as a result, that office did not want to work with him or prosecute his cases. Petitioner disputes this claim, asserting that his conviction and arrest rates were well above average, and his rate of "decline to file" and "Nol-Pros" were lower than the majority of the other detectives. In reality, Petitioner claims, he was discharged because he was injured in 1977 and was hospitalized three time because of that. His supervisor directed him to return to work before it was appropriate to do so, and expressed the opinion Petitioner was malingering. Notwithstanding this, Petitioner filed a worker's compensation claim against the Sheriff's office as a result of his injury, and when his lawyer negotiated a settlement slightly under the maximum compensible for the injury involved, Petitioner was thereafter discharged. Mr. Fairbanks notes that shortly after this time, the Sheriff was removed from office by the Governor. Petitioner also claims that he received "good or better" evaluations over the first four years of his employment. Yet, the termination action was based on several alleged incidents of misconduct. These included a failure to comply with search and seizure laws, failure to follow department policies in areas of public statements pertaining to other criminal justice agencies, and a failure to comply with civil rights of individuals being questioned. He also believes it was because of the notoriety he had gained within the criminal justice system. Petitioner either denies any involvement in the situations alleged or, as in the incident involving public statements, asserts what he considers to be a reasonable and legitimate rationale for having done what he did. In the latter incident, he claims, he was directed to discuss the case in question by his superior who thereafter, when the publicity was less than desirable, declined to admit he had done so. In December, 1989, Petitioner went to work for the Bradenton Beach Police Department as a police officer, resigning in August, 1983 when the department was moving for his termination because of a false official report, false swearing and official misconduct. Petitioner was cleared of those charges by State Attorney, but the Department persisted in its efforts to dismiss him. During the course of this process, Petitioner inquired of the Criminal Justice Standards and Training Commission regarding his certification status and was advised he was not certified. Upon the receipt of this information, Petitioner resigned. After his resignation, however, he was advised by the Commission that he had not been decertified. In addition to the matters outlined above, Mr. Fairbanks' personnel file with the Bradenton Police Department also contained two letters of reprimand regarding citizen complaints on traffic stops and his demeanor with the public, and a letter from the Manatee Sheriff's Detention Director complaining of Petitioner's failure to follow proper procedures when booking prisoners. Again, Petitioner has "explanations" for the allegations which, if believed, would absolve him of any wrongdoing. In this, as in the other situations mentioned where Petitioner has his own version of the situation, it is impossible to determine which version is the most accurate. Petitioner claims that in 1984, for a period of three months, he served as Risk Management-Range Safety Officer for Manatee County. However, the Human Resources Director for the County has no record of this or of Petitioner working there as anything other than a life guard. He also held several jobs outside law enforcement that year and into 1985. From August, 1985 to November, 1988, the period covering that referenced in the paragraph next above, Petitioner worked as a lifeguard in Manatee County. Though rated as an overall satisfactory employee, the records reflect that Petitioner quit without notice. He also worked as a part-time police officer for Bradenton Beach from July, 1987 to April, 1988 when he was discharged by the new Chief of Police. From November, 1988 to December, 1988, Petitioner served as Chief of Police for Bradenton Beach, but he was terminated by the new City Council for "administrative reasons - unfavorable circumstances." Allegedly these referred to reported citizen complaints about Petitioner while he was conducting a personally initiated investigation into the improper notarization of election affidavits. Petitioner recounts an extended version of the incidents alleged here. It is impossible, at this time, to determine what actually happened. For eighteen days during April, 1989, Petitioner was employed by the DeSoto Correctional Institute as a Corrections Officer. While in training at the Corrections Academy, Petitioner disagreed with the way the firearms instruction was being conducted and criticized the instructors. He was described as "irritable, argumentative and totally untrainable." It is also alleged that Mr. Fairbanks committed safety violations at the range. In a discussion with one of the instructors, Petitioner was sent to the office of the personnel manager where he asked for a piece of paper and submitted his resignation. It is quite probable, in light of the Petitioner's extensive experience with and good record in the use of firearms, that he did comment unfavorably on the way the range training was being conducted. By his own admission, Petitioner is difficult to get along with and very open and free in expressing his opinion. By the same token, he admits to being abrasive and argumentative. Based on his extensive experience with firearms, however, it is highly unlikely that he was unsafe on the range. He claims he was not argumentative with the people at the prison, but he resented the way he was talked to. He was afraid he would be framed by prison personnel, and he quit before they could do anything to him. This was the last employment he had in law enforcement. Since May, 1989 to the present, he has been employed as a forklift operator at Tropicana Products in Bradenton. Mr. Fairbanks takes great umbrage at the fact that he was denied employment by TPD when Mr. Metzger, also a police officer, who was discharged from his prior employment in law enforcement in Bradenton Beach, was hired. Petitioner considers his qualifications and his honesty as being far superior to that of Mr. Metzger, and he is offended by the fact that TPD considers Metzger qualified for employment while rejecting him. He is convinced that TPD relied on the recommendation of Mr. Maddox, the former Chief of Police at Holmes Beach, whose own reputation, according to Petitioner, is not so good. In the course of his investigation, Mr. Anderson interviewed several individuals other than those related to the incidents described herein. An attorney described Petitioner as uncompromising and a "by the book" policeman. A former supervisor at the Sheriff's department, while describing him as a hard worker and needing specific supervision, nonetheless would like to have Petitioner work for him. Mr. Maddox is not a great admirer of Mr. Fairbanks, describing him as, among other things, aggressive. Three professional references describe him as hard headed and would not recommend him, yet the six personal references all gave him a good recommendation. Mr. Anderson submitted his investigative summary regarding Mr. Fairbanks to Mr. Walker, TPD Personnel Bureau Manager, on September 14, 1992. About that time, a copy of Mr. Anderson's report was discussed with the Petitioner who thereafter prepared an extensive rebuttal to the allegations therein, supported by numerous exhibits which, he felt, gave credence to his assertions. Mr. Walker cannot say at this time whether he read it or not, but it seems familiar. His testimony indicates the likelihood he did read it, however, and it is so found. Nonetheless, Mr. Walker indicated that he was not persuaded by the Petitioner's submittal, and, on September 28, 1992, he forwarded his negative recommendation to the TPD Chief of Police. In his recommendation against hiring Petitioner, Mr. Walker noted Petitioner's prior complaint history but gave no indication that played any part in his recommendation. He also recited Petitioner's prior employment history and briefly describes the caliber of that service. Walker concluded that Petitioner's past employment record, with its indication of disciplinary problems, demonstrates he does not meet the TPD's professional standards. There is no evidence of personnel records of the TPD from which it reasonably can be concluded that the Department's decision not to employ Petitioner was retaliation for his prior complaint filed with the Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Commission on Human Relations in FCHR Case No. 93-0636 determining No Cause on Petitioner's complaint of retaliation. RECOMMENDED this 2nd day of May, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 2nd day of May, 1995. COPIES FURNISHED: Paul Louis Fairbanks 1715 82nd Street NW Bradenton, Florida 34209 Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez Suite 200, 109 N. Brush Street Post Office Box 639 Tampa, Florida 33601 Sharon Moultry Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
