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 Whether Petitioner was discriminated against based upon race?
Findings Of Fact Respondent, Deland Housing Authority (the Authority), provides subsidized housing to low-income families in Deland, Florida. Linda McDonnell has been the Executive Director of the Authority since approximately 1990. Petitioner, Marjorie R. Ross, a black female, was employed by the Authority as a Project Management Aide, beginning on or about June 14, 1993. At the time of Petitioner's hire, Greg Norton, the Public Housing Manager, was her immediate supervisor. Petitioner's job duties included, among others, maintaining residents' records and files, computing and inputting utility charges, preparing and issuing monthly rent statements to residents, and preparing 14-day notices (late rent notices). Petitioner's performance evaluation, for the period August 21 to December 21, 1993, rated her overall performance as "needs improvement." In comments attached to the evaluation, it was noted that Petitioner "tried to do too many things at once," causing decreases in her productivity. The comments also stated Petitioner "needs to make an effort to straighten her office each day" and that her "greatest shortfall as an employee is the manner in which she relates to the other employees." From the date of this evaluation, tension existed between Petitioner and McDonnell. For example, McDonnell cautioned Petitioner about speaking to persons outside the organization without permission. On September 26, 1994, McDonnell approached Petitioner to introduce a visiting HUD representative to Petitioner. Petitioner did not speak with the representative, despite McDonnell's repeated requests, because of McDonnell's previous instructions not to speak without permission. Petitioner received a written reprimand for her conduct. On July 25, 1995, McDonnell gave Petitioner a memo that documented Petitioner's habit of promising to create certain projects and failing to complete them. At the end of July 1995, Norton resigned from the Authority. On July 31, 1995, McDonnell conducted a staff meeting relating to Norton's resignation. During the meeting, McDonnell instructed Petitioner to only write receipts for rent checks, but to refrain from entering the receipts into the computer. Despite this instruction, Petitioner subsequently removed rent receipts from McDonnell's secretary's desk and entered them into the computer. As a result, Petitioner received a reprimand and was given a day off without pay. Petitioner received another written reprimand on September 27, 1995, for failing to follow established Authority policy regarding reporting absences. Authority policy required employees to complete an absentee report upon returning to work from an unscheduled absence. Petitioner failed to complete an absentee report upon returning from an unscheduled absence on September 25, 1995, and was not given pay for the absence. Petitioner applied for the position vacated by Norton as Public Housing Manager. The Authority hired Connie Grobstein, a white female, in September 1995. The stated reason for hiring Grobstein was her experience in grant writing; McDonnell stated that writing grants was an important part of the job. Grobstein had little if any experience with public housing. Grobstein became Petitioner's direct supervisor and Petitioner was asked to teach her the day-to-day operations of the office. During September 1995, Grobstein wrote several memos to McDonnell regarding Petitioner's work performance and attitude. On December 21, 1995, Petitioner received a written reprimand from Grobstein for, among other infractions, failing to timely issue 14-day notices. The reprimand stated, "any additional violations of Authority procedures will lead to further disciplinary actions up to and including termination." On February 6, 1996, Grobstein and Petitioner had a confrontation in front of a tenant regarding the start date of a lease. Even though her office was several doors away, McDonnell could hear Grobstein and Petitioner arguing about the lease. As a result of the incident, McDonnell terminated Grobstein.1/ Petitioner was suspended for one day as a result of the argument with Grobstein. While Petitioner was absent, McDonnell discovered that several resident files, which Petitioner was responsible for maintaining, were missing necessary documentation. McDonnell contacted the Authority's attorney, who advised McDonnell that she had no choice but to terminate Petitioner's employment. On February 12, 1996, Petitioner's employment was terminated. The stated reasons for her termination were: consistent problems with her work performance; the incident with Grobstein on February 6, 1996; refusing to follow instructions; giving out rent credits/reductions without approval; attempting to undermine McDonnell and the Authority; demonstrating a poor attitude and an unwillingness to cooperate with others; and failing to complete her work in a timely manner. Respondent maintains a disciplinary policy for Authority employees. Pursuant to this policy, employees may be discharged for, among other reasons, insolence or insubordination; failure to obey legitimate orders from a supervisor; mistreatment (verbal, psychological or physical) of a client or fellow employee; and neglect or willful disregard of the responsibilities, duties and work rules of a position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2003.
The Issue The issue is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS) pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, on the stipulations of the parties, and on the entire record of this proceeding, the following factual findings are made: Respondent is charged with managing, governing, and administering the FRS. The FRS is a public retirement system as defined by Florida law. The Duval County School Board (DCSB) employed Petitioner as a teacher at Ribault High School. As a teacher, Petitioner was subject to the Code of Ethics of the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.001. Petitioner also was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. Petitioner’s employment with the DCSB began on or about August 19, 1986. By reason of this employment, Petitioner was enrolled in the FRS as a Regular Class member. On or about December 7, 2001, Petitioner was arrested in connection with Officer David Coarsey's sworn information, which provided as follows in relevant part: On 12-07-01, Lt. Remolde called the Jacksonville Sheriff’s Office Sex Crimes Office and stated that a student at Ribault High School had reported to the principal, Mr. Ken Brockington, that she had penile/vaginal intercourse with this suspect. On 12-07-01, I arrived at Ribault High School and interviewed the victim. She stated that approximately three weeks ago, she went to the suspect’s classroom at his request after school hours. The suspect asked the victim to help him with some of his work. While she was there, the suspect put his arm around the victim and began rubbing her waist. The suspect then began talking to the victim about sex. The suspect then put his hand up the victim’s skirt and inserted his finger in her vagina. The suspect also pulled the victim’s shirt and bra down and “sucked” on her breast. The victim said that she did not attempt to stop the suspect. The victim then told the suspect, “I don't think we should do this”, and she walked out of the room. Approximately one week later, the suspect asked the victim to come back to his classroom after school. When the victim arrived at the room, the suspect began “rubbing” on the victim’s body. The victim stated that the suspect retrieved a condom from a “grey file cabinet” and then sat down in a chair. The suspect pulled his penis out and the victim put the condom on his penis. The victim pulled her shorts down and sat on the suspect’s lap, at which time the suspect put his penis in the victim’s vagina. After having penile/vaginal intercourse with the suspect for a short period of time, the victim stood up and the suspect masturbated until he ejaculated. On 12-07-01, the victim met the suspect in the “Book Room”. The suspect pulled the victim’s shirt and bra down and “sucked” on her breast. The suspect then pulled his penis out of his pants and asked the victim to masturbate him. The victim masturbated the suspect until he ejaculated. The victim wiped the suspect’s semen off of her hands with a paper towel and threw it in the trash can in the “Book Room”. The victim then left the room and reported the incident to a substitute teacher, Mr. Carlos Bowers (12-25- 59, 3701 Winton Dr., B/M), who in turn, reported it to the principal, Mr. Brockington. The victim stated to me that all of the sexual encounters with the suspect were consensual. I retrieved the trash bag that contained the above mentioned paper towel from the “Book Room” and put it in the JSO Property Room. The suspect was transported to the JSO Sex Crimes Office by Officer D.W. Holsey #6044 and I transported the victim to the Sex Crimes Office. I contacted the victim’s mother and asked her to come to the JSO Sex Crimes Office. When she arrived, she transported the victim to the Child Crisis Center for a medical exam (swabs of the victim’s breasts). I advised the suspect of his constitutional rights and asked him to sign the rights form. The suspect signed the form and agreed to speak to me and Det. Romano #7527 about the allegations. The suspect admitted to having penile/vaginal intercourse with victim one time, “sucking” on the victim’s breast on two different occasions, and rubbing on her vagina once. The suspect stated that all of the sexual encounters happened at the school. The suspect stated, “It was a huge mistake, my life is fucked”. The suspect gave a written statement in regards to having penile/vaginal intercourse with the victim. The suspect was arrested and transported to the PTDF. The information reported in the sworn information truly and accurately recounts the events that occurred and to which Petitioner admitted. The arrest and booking report is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. Petitioner resigned his employment with the DCSB on or about December 27, 2001, effective on or about January 15, 2002. By reason of his employment with DCSB, Petitioner earned approximately 15.80 years of service credit in the FRS. On or about February 14, 2002, Petitioner was charged, by amended information, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in case number 2002-599-CFA, with (a) one count of sexual battery, a second-degree felony, in violation of Section 794.011(8)(b), Florida Statutes; and (b) one count of lewd or lascivious molestation, a second-degree felony, in violation of Section 800.04(5)(c)2., Florida Statutes. The amended information provided in relevant part: HARRY.L. SHORSTEIN, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that ARTHUR JOHN MARSLAND, JR, on or between the 1st day of November, 2001 and the 7th day of December, 2001, in the County of Duval and the State of Florida, did, while in a position of familial or custodial authority, engage in an act which constitutes Sexual Battery with * * * a person 12 years of age or older, but less than 18 years of age, by placing his penis in or upon the vagina of * * * contrary to the provisions of Section 794.011(8)(b), Florida Statutes. SECOND COUNT And for the second count of this information, your informant further charges that ARTHUR JOHN MARSLAND, JR., a person 18 years of age or older, on or between the 1st day of November, 2001 and the 7th day. Of December, 2001, in the County of Duval and the State of Florida, did in a lewd or lascivious manner force or entice * * * a child l2 years of age or older, but less than 16 years of age, to touch the genital area or clothing covering the genital area of Defendant, contrary to the provisions of Section 800.04(5)(c)2, Florida Statutes. The amended information is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. The victim of the alleged crimes was a student at the school where Petitioner taught. The alleged crimes took place in Petitioner's classroom or in the book room at the school where Petitioner taught. On or about April 8, 2002, Petitioner entered a plea of guilty to the second count of the amended information. Petitioner pled guilty because he was in fact guilty. Petitioner made the plea freely and voluntarily. On or about April 29, 2002, judgment was entered on Petitioner’s guilty plea. He was adjudicated guilty. The judgment and corrected order of sex offender probation are filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. During the hearing, Petitioner admitted that, but for his job position as a teacher, he “probably [would] not” have had an opportunity to have sexual relations with a student in the school’s classroom or book room. Petitioner also admitted that having sexual relations with one of his students was “obviously not” one of his duties and responsibilities as a teacher. Petitioner wrote three letters of apology in connection with the matter. He apologized in writing to the victim, to his spouse, and the DCSB. On or about September 27, 2002, Charlie Crist, as Commissioner of Education, filed an Administrative Complaint, before the Education Practices Commission of the State of Florida, in case number 02-0681-RT. The complaint sought disciplinary action against Petitioner’s educator’s certificate. The Administrative Complaint charged Petitioner in part with the following statutory and rule violations: STATUTORY VIOLATIONS COUNT 1: The allegations of misconduct set forth herein are in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation. COUNT 3: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. COUNT 4: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education. COUNT 5: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(j), Florida Statutes, in that Respondent has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate. COUNT 6: Section 231.2615(2), Florida Statutes, provides that the plea of guilty in any court or a decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate. RULE VIOLATIONS COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(2), Florida Administrative Code, in that Respondent has failed to have his primary professional concern always be for the student and for the development of the student’s potential and has failed to seek to exercise the best judgment and integrity. COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(3), Florida Administrative Code, in the Respondent has failed to be aware of the importance of maintaining the respect and confidence of his colleagues, of students, of parents, and of other members of the community and that Respondent has failed to achieve and sustain the highest degree of ethical conduct. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical safety. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 11: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code, in that Respondent has exploited a relationship with a student for personal gain or advantage. The Administrative Complaint is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. In consideration of the Administrative Complaint, the Education Practices Commission entered a Final Order permanently revoking Petitioner’s educator’s certificate. The Final Order is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. On or about October 20, 2003, Petitioner applied for early service retirement. Petitioner’s effective date of retirement was established as November 1, 2003. By certified letter dated May 2, 2008, Respondent notified Petitioner of the intended action to forfeit his FRS rights and benefits as a result of his guilty plea. The Division suspended payment of Petitioner’s monthly retirement benefits in May 2008. Petitioner had received approximately $41,309.56 in FRS retirement benefits from November 2003 through April 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 15th day of December, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Arthur J. Marsland, Jr. 1856 B Hereford Road Middleburg, Florida 32068-3104 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee,, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the Respondent are true, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility for certification of correctional officers within the State of Florida. Respondent holds Correctional Certificate No. 200857, issued to her by Petitioner. Shortly after 2:00 a.m., on January 8, 2005, Corporal Andrew Markham of the City of Sebring Police Department was dispatched to the scene of a reported traffic crash at the intersection of Center Street and Northeast Lakeview Drive in Sebring, Florida. Corporal Markham found no vehicles in the intersection or any evidence of a crash there. Adjacent to the intersection, in the parking lot of the Sebring Public Library, Corporal Markham saw a car with its brake lights illuminated. He approached the car to determine whether the occupants could provide any information about the reported traffic accident. Corporal Markham observed that the front of the car was damaged from its collision with a low barrier wall that bordered the parking lot. The windshield was also damaged from what Corporal Markham concluded was the impact of the occupants' heads with the windshield when the car hit the barrier. When Corporal Markham approached the car, he saw Respondent exit the driver's seat and begin to walk away. Corporal Markham stopped Respondent to speak with her. Respondent had blood on her face, as did the other occupant of the car. At the time of the incident, Respondent denied being the driver of the car. At the hearing, Respondent admitted that she was the driver. During his conversation with Respondent at the scene, Corporal Markham smelled the odor of alcohol on Respondent, noted that she was unsteady, and that her eyes were red. When Corporal Markham asked Respondent to take field sobriety tests, she continued to insist that she was not the driver of the car and would not take the tests. Based on his observations at the scene, his training, and his 13 years of experience as a police officer, Corporal Markham believed Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. Therefore, he arrested Respondent for the offense of driving under the influence of alcohol. Corporal Markham first transported Respondent to the Highlands County Medical Center to receive treatment for her injury. At the Medical Center, Respondent refused medical treatment, and Corporal Markham transported her to the Highlands County Jail. At the jail, Respondent was taken to the area where breath tests are conducted. Corporal Markham read Respondent the "Implied Consent" that informed her that if she refused to take the test, she could lose her driving privilege for up to one year. Respondent refused to take a breath test at the jail. Deputy Loran Danielson of the Highlands County Sheriff's Office was the officer on duty to conduct the breath tests at the jail. When Deputy Danielson met Respondent, he noted that her breath smelled strongly of alcohol, her eyes were bloodshot, her speech was slurred, and she was unsteady on her feet. Based on his observations of Respondent, his training, and his 10 years of experience as a Deputy Sheriff, Deputy Danielson was of the opinion that Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. During the time that Deputy Danielson talked to Respondent, she told him that she had consumed "many" drinks, and if she took the breath test, it would show "I'm drunk." On September 27, 2004, less than four months before the incident at issue in this case, Petitioner issued Respondent a Letter of Acknowledgement for an earlier driving under the influence (DUI) violation by Respondent. At the hearing, Respondent admitted that she had "a few drinks" with friends at a bar just prior to her arrest, but she denied that she was intoxicated. Respondent said the crash occurred because she had taken her eyes off the road to speak to passengers in the back seat. Respondent said she refused to take the field sobriety tests or the breath test at the jail because she was scared. Respondent explained that one term of her probation for the prior DUI conviction was that she was not to drink alcohol. Respondent expressed remorse for her behavior on January 8, 2005, and claimed she has stopped drinking alcohol. Respondent stated that her career as a correctional officer is very important to her, and she requested another opportunity to prove she is a responsible person and capable correctional officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding that Respondent Tena D. Grant failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and ordering that her certification as a correctional officer be revoked. DONE AND ENTERED this 4th day of April, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 4th day of April, 2006.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Jack Mitchell is a native-born Floridian, now forty-seven years old and is married with one child. He has a degree in sociology from the University of Central Florida and presently works for a nonprofit community organization called Young Blacks in Action. Be has been doing work in the areas of civil rights and social justice for some twenty years, and was formerly an ordained minister and a district executive for the National Boy Scouts of America. He has also worked for Martin Marietta in the area of quality control. On December 24, 1983, petitioner was in Albertson's Food Store doing some last-minute Christmas shopping for his wife. He picked up two bottles of cologne. He claims that, after shopping for a while, he became concerned that he did not have his wallet and that, with the cologne in his hand, he began checking the inside pockets of his coat to look for his wallet. At that point, he was placed under arrest for shoplifting. He further testified that he had no intent to leave the store without paying for the merchandise. Without an attorney, petitioner pled nolo contendere to retail theft. He asserts that he entered this plea in order to avoid the publicity and embarrassment of a trial, since he is considered a public leader in his community. By Judgment and Sentence recorded on January 23, 1984, the Orange County Court adjudged petitioner guilty of retail theft and ordered him to pay a fine of $100.00, and other fees and costs in the amount of $34.00. Petitioner has never before been convicted of a crime. In March of 1984, petitioner applied for licensure as a limited surety agent. The respondent denied his application, citing as grounds therefore Section 648.45(2)(e) and (k) , Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as a limited surety agent be DENIED, without prejudice to petitioner to reapply for such licensure after the expiration of one (1) year from the date of the Final Order entered in this proceeding. Respectfully submitted and entered this 8th day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1985. COPIES FURNISHED: Clark Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Fla. 32301 Scott Sterling, Esquire 311 N. Rosalind Avenue Orlando, Fla. 32801 Bill Gunter Insurance Commissioner The Capitol Tallahassee, Fla. 32301
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue Whether Petitioner is entitled, pursuant to Section 517.1203, Florida Statutes, to distribution of funds of the Securities Guaranty Fund which were set aside to reimburse investors for funds lost through investments with GIC Government Securities, Inc.
Findings Of Fact This proceeding arises under Section 517.1203, Florida Statutes, administered by the Agency. Under the terms of the statute, the Agency is responsible for evaluating claims filed by investors who suffered financial loss due to the actions of GIC Government Securities, Inc. (GIC). Basically, the Florida Legislature decided to extend, through this statute, some relief to investors who were "scammed" by a specific fraudulent security company or security company behaving fraudulently, which company ended up in bankruptcy in the 1980's. The statute enables investors to file claims to recover from the "New Fund" the portion of their proven investments which were not recovered from the Bankruptcy Court, GIC or its agents, or the Securities Guaranty Fund. The "New Fund" or "GIC Fund" is funded with monies generated by the sale of bonds issued by Investment Fraud Restoration Financing Corporation, a corporation created by statute to generate funds to reimburse GIC investors for their lost investments. Pursuant to Section 517.1203(2)(a), Florida Statutes, investors must have done the following, in order to be considered for reimbursement: . . . filed claims with the Department of Banking and Finance after October 1, 1996, and on or before December 31, 1998 [and have either]: Received a final judgment against an associated person of GIC Government Securities, Inc., based upon allegations which would amount to a violation of s. 517.07 or s. 517.301; or Demonstrated to the department that the claimant has suffered monetary damages as a result of the acts or actions of GIC Government Securities, Inc., or any associated person thereof, based upon allegations which would amount to a violation of s. 517.07 or s. 517.301. "Investor" is not defined in Chapter 517, Florida Statutes. See, Section 517.021, Florida Statutes. Section 517.1203(3), Florida Statutes, provides that in evaluating the investors' claims against the GIC Fund, "the department may rely on records from the bankruptcy proceeding regarding GIC Government Securities, Inc., unless there is good cause to believe that the record is not genuine." Minnie Moss was the daughter of Pauline Kline and the sister of Cecilia Robinson a/k/a Cecelia Robinson a/k/a Celia Robinson. Minnie Moss predeceased both her mother and sister and died testate (leaving a will), on November 16, 1980. Cecilia Robinson was the daughter of Pauline Kline. She was the sister of Minnie Moss. She was the mother of Jessica Robinson and Michael Robinson a/k/a Spencer Michael Robinson. Cecilia Robinson died on November 11, 1998. She is survived by her two children, Jessica and Michael. When Cecilia's sister, Minnie Moss, had died on November 16, 1980, she left a will dated September 19, 1969, as amended by four codicils (collectively, "the Will"). Under the terms of the Will, Mrs. Moss's estate was divided into two equal parts, designated Part A and Part B. Part A of Mrs. Moss's estate consisted of $100,000, which was divided into two equal parts to be distributed, one part each, to equal trusts created for the benefit of Jessica and Michael Robinson, Mrs. Moss's niece and nephew. Part B of Mrs. Moss's estate, consisting of her remaining estate, was also divided into two equal parts which were, in turn, utilized to create two charitable unitrusts. One unitrust provided life benefits for Cecilia Robinson. The other unitrust provided life benefits for Pauline Kline. By the terms of the Will, when either Cecilia or Pauline died, the survivor of the two would receive the benefits from the decedent's unitrust for the remainder of the survivor's life, and upon the death of the survivor (either Cecilia or Pauline), the unitrusts' combined balances were to be distributed as follows: five percent to Jacksonville Jewish Center; five percent to River Garden Hebrew Home for the Aged, and ninety percent to Hadassah. Put another way, the Will intended that if Pauline Kline died first, Cecilia Robinson was to continue to be able to draw on the Robinson unitrust and also have a life estate in the Kline unitrust, and when Cecilia Robinson died, the Will intended that the remainder/balance of the Kline unitrust and the remainder/balance of the Robinson unitrust were to be combined, and the total remainder/balance of the combined trusts' balances were to pass to the three residual charities in the respective named percentages. In fact, when Pauline Kline predeceased Cecilia Robinson, that event left Cecilia as the lifetime beneficiary of both the Robinson and Kline unitrusts, but her interest was only a life estate in the two trusts. Mrs. Moss's Will had nominated Robert Rieders to serve as personal representative of her estate and as trustee for each of the unitrusts established by the Will for Pauline Kline and Cecilia Robinson. On November 29, 1985, Rieders filed a claim in the Tampa Division of the United States Bankruptcy Court, for the Middle District of Florida, in the bankruptcy case of In re: G.I.C. Government Securities, Inc., Case No. 85-2784-887, stating, in relevant part: I, the undersigned, ROBERT M. RIEDERS, WHO RESIDES AT Jacksonville, Florida, am the Trustee for CECILIA ROBINSON, under Trust, created by Will and Codicils thereto of Minnie Moss, Deceased and I am authorized to make this Proof of Claim on behalf of said trust, through my undersigned attorney. (Emphasis supplied) In support of the foregoing bankruptcy claim, which was filed in the amount of $190,912.86, Rieders attached copies of various documents, including investment receipts and canceled checks from the Robinson unitrust account, establishing that the investments were made on behalf of "Robinson under trust created by will and codicils of Minnie Moss, deceased." Four years later, on or about February 21, 1989, Rieders joined in filing a "Motion for Substitution of Counsel and Substitution of Trustee for Creditor" in the GIC bankruptcy case. The Motion sought to have the bankruptcy court substitute Florida National Bank as trustee "of the trusts created for the benefit of Cecilia Robinson and Pauline Kline under the will and codicils thereto of Minnie Moss, deceased (the 'Trusts'), which are creditors of the debtor's estate herein." It further represented that "The Trusts, Ritz and Post & King each filed timely proofs of claim in this proceeding and have received periodic distributions from the estate. The Trusts own the stock of Ritz and Post & King." The foregoing Motion also attached, as an exhibit thereto, a copy of an agreement of compromise between Rieders, as "trustee of the trusts under the will and codicils of Minnie Moss," and Hadassah, one of the three residual charity- beneficiaries of both unitrusts. The agreement set forth "Facts Giving Rise to Agreement" which stated, in part, referring to Moss's Will: Under the said Will, the residuary estate was divided into two equal parts. One part was bequeathed to a charitable remainder unitrust for the benefit of Pauline Kline, the mother of decedent, and the other part bequeathed to a charitable unitrust for the benefit of Celia [sic] Robinson, the sister of decedent. Upon the death of the last to die of Pauline Kline or Celia [sic] Robinson, the remainder of the trusts is distributable as follows: Five percent to Jacksonville Jewish Center, five percent to River Garden Hebrew Home for the Aged and ninety percent to Hadassah. Pauline Kline has died, and Celia [sic] Robinson is still alive. (Emphasis supplied) On March 7, 1989, the Bankruptcy Court issued an "Order for Substitution of Counsel and Substitution of Trustee for Creditor," granting Rieders' Motion and accepting the agreement of compromise and the facts set forth therein, without comment. While the evidence demonstrates that disbursements were made by the Bankruptcy Court to the trusts and their corporate possessions (see Finding of Fact 16), no competent, credible evidence was adduced that the Bankruptcy Court ever made any determination that Cecilia Robinson, individually, was entitled to, or collected, any amount from Debtor GIC. Petitioner's counsel represented that there appear to be no remaining records of the Bankruptcy case, In re: G.I.C. Government Securities, Inc., Case No. 85-2784-887, except for those left with a Victims Advocacy Group. (TR-84) Cecilia Robinson died on November 11, 1998. Jessica Robinson had received a Durable Power-of- Attorney from Cecilia on June 17, 1986. It was not effective after Cecilia died, but pursuant to it, Jessica filed a claim, or caused a claim to be filed, with the Agency's GIC Fund on December 22, 1998.4/ The statutory time limit for filing claims with the GIC Fund ended on December 31, 1998. There is no evidence of any other relevant timely claims being filed by Jessica Robinson or anyone else. There is no evidence of any other claims being filed on behalf of Cecilia Robinson, in any capacity, timely or otherwise. There is no evidence that a claim was made on the Agency's GIC Fund on behalf of Cecilia Robinson's Estate prior to December 31, 1998. Jessica's December 22, 1998, claim apparently was made in the name of "Cecelia [sic] Robinson, Ritz Enterprises, and Post & King Liquors," because on December 13, 2001, the Agency entered a Notice of Intent to Enter a Final Order Granting or Denying Recovery (NOI), with an attachment referencing "Robinson, Cecelia; Ritz Enterprises; Post & King Liquors: 853,854,855-claim by Jessica Attorney in Fact for Cece "5/ On May 1, 2002, a similar NOI was entered with the same attachment concerning Jessica as attorney in fact and some withdrawals of other claims not relevant here.6/ On June 17, 2002, the Agency entered an Order Amending Final Order and Notice of Rights, stating the May 1, 2002, NOI had contained scrivener's errors, and removing references to Ritz Enterprises, Post & King Liquors, and Cecelia Robinson, because those claimants had requested a disputed-fact hearing.7/ Jessica Robinson qualified as Personal Representative of Cecilia Robinson's Estate by Letters of Administration entered June 18, 2002. On July 23, 2002, the Agency entered an Order Dismissing Petition for Hearing With Leave to Amend, finding, in pertinent part, 3. Claimant's counsel filed a letter with the Department in response to the NOI advising of Claimant's intent to instigate probate proceedings on behalf of the estate. The Department accepts this letter as a nonconforming Petition for Hearing. and ordering that: Based on the foregoing Findings of Fact and Conclusions of Law, Claimant's Petition for hearing is Dismissed with leave to amend. Claimant is granted fifteen (15) days from the date of this Order in which to file a Petition for Hearing in compliance with the administrative rules.8/ The Division Case File reflects that on August 10, 2002, a Petition for Hearing, with attachments, was served by mail upon the Agency. It was brought by "Jessica Robinson, Personal Representative of the Estate of Cecilia Robinson, . . . on behalf of herself and her brother Spencer Robinson." It claimed $184,325.46, on the basis of a bankruptcy court judgment because "on several occasions, the necessary claim and proof was provided to the Office of the Comptroller but the claim was denied."9/ The Agency referred the matter to the Division of Administrative Hearings on August 22, 2002, enclosing the August 10, 2002, Petition for Hearing and the December 13, 2001, Order, which had been repeatedly superceded, as set out above.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Department of Financial Services, Office of Financial Institutions and Securities Regulation, enter a final order denying the Claim/Petition brought in the name of Cecilia Robinson and/or her Estate. DONE AND ENTERED this 25th day of February, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2003.
