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
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)
Findings Of Fact Each Respondent holds a Class "B" Watchman, Guard, or patrol Agency License number BOO-00847 and has held such licensure at all relevant times. All references to Respondent are to Murrell security Patrol, Incorporated. All references to Respondent Murrell are to Alfred L. Murrell. Respondent's main office was at all relevant times in Melbourne, Florida. In August, 1986, Respondent leased office space for a branch office in Orlando, Florida. Respondent hired Lee Hayes as branch manager for the Orlando office. Mr. Hayes worked for Respondent from early September, 1986, until mid-January, 1987. Shortly after beginning to work for Respondent, Mr. Hayes and Respondent applied to Petitioner for, respectively, a Class "MB" branch manager's license and a Class "BB" branch office license, which were subsequently issued. Following Mr. Hayes' departure, the managerial duties of the Orlando branch office were in large part performed by Gerald Bellizzi, who supervised guards on patrol, solicited guard business, billed accounts, and collected receivables. Mr. Bellizzi had no Class "MB" license, nor any other license under Chapter 493 until he obtained, in late December, 1986, a Class "D" license, which allowed him to perform watchman, guard, or patrol duties. Respondent provided Mr. Hayes, while he served as manager of the Orlando branch office, business cards to be used in soliciting business. These cards stated that Respondent's business included investigations, in addition to guard and patrol duty. At the same time, Respondent placed an advertisement in the Southern Bell Yellow Pages in the Orlando area. The ad stated that Respondent's services included investigations. Although the Orlando branch office never performed any investigations, Mr. Hayes received two inquiries concerning the possibility of Respondent performing investigative services. In responding to the first inquiry, Mr. Hayes contacted Respondent Murrell and, with his permission, quoted an hourly rate for investigative work. In both cases, the prospective customers never asked Respondent to do any work. At all times since the incorporation of Respondent in 1976, Respondent Murrell has been its president and his son, Mike Murrell, has been Respondent's vice president.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents Alfred L. Murrell and Murrell Security Patrol, Incorporated, not guilty of the charges contained in Count III of the Administrative Complaint, but guilty of the charges contained in Counts I and II. It is further recommended that the Final Order impose an administrative fine upon respondents, jointly and severally, in the amount of $500. DONE and RECOMMENDED this 15th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1760 Treatment Accorded Petitioner's Proposed Findings 1-3. Rejected as not finding of fact. 4a. Adopted. 4b,c. Rejected as irrelevant. First sentence adopted. Remainder rejected as recitation of testimony. Rejected as recitation of testimony and subordinate. Rejected as recitation of testimony and, in view of the nonspecificity of allegations in Count III, irrelevant. 8. Rejected as recitation of testimony and subordinate. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol Tallahassee, Florida 32399-0250 John C. Murphy, Esquire 1901 South Harbor City Boulevard Suite 805 Melbourne, Florida 32901 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 181 The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact Respondent was certified as a correctional officer by the Criminal Justice standards and Training Commission on February 17, 1988, and was issued certificate No. 03-87-502-08. On October 3, 1988, Metro-Dade Police Officer Jay Rogers was on duty and was dispatched to the Kendall Town and Country Mall to assist the Mall's security officers in clearing the parking lot after a night club closed. Officer Rogers walked up to a group of people, including the Respondent and asked them to finish saying good-bye and leave the parking lot. Officer Rogers then backed off and gave the remaining people in the lot about ten to fifteen minutes to finish saying good-bye. Officer Rogers again approached the group which included the Respondent, and asked that they leave. At that point, the Respondent replied to the officer's request with words to the effect of, "You wait, you can't make us leave, I'm looking for my keys." Officer Rogers asked the Respondent to find her keys, do whatever she needed to do, finish saying good-bye, and to please leave. The Respondent replied with words to the effect of, "I'll leave when I'm ready," and, "You're not telling me what to do." At about this point in the communication between Officer Rogers and the Respondent, an unidentified male approached the Respondent and said words to the effect of, "Come on, let's leave, the officer told us to leave, let's get out of here." The Respondent pushed the unidentified male away, and he got into a vehicle and left. Officer Rogers again asked the Respondent to leave. At some point in the interchange the Respondent replied, "What are you going to do, arrest me?" Eventually, Officer Rogers told the Respondent to leave or she would be arrested for trespassing after warning. The Respondent continued to say that she was not leaving. Officer Rogers thereupon advised the Respondent that she was under arrest for trespassing after warning and removed his handcuffs from his belt. At this point the Respondent became belligerent and hostile and told Officer Rogers, "You're not arresting me," and, "You'd better call for a lot of police, I'm not leaving." Officer Rogers requested backup units at this time. At about the same time, a man named Randall Rymes attempted to intervene between Officer Rogers and the Respondent. Officer Rogers told Mr. Rymes to leave and not interfere with the arrest. Mr. Rymes moved away and got into a two-door, black Isuzu automobile. As Officer Rogers attempted to place the handcuffs on the Respondent, she pulled her arm away and twisted her body. Officer Rogers continued with his efforts to arrest the Respondent and grabbed her left arm while asking her not to resist or struggle. The Respondent again pulled her left arm away and then struck Officer Rogers in the neck with her right fist. With Officer Rogers holding onto her arm, the Respondent pulled the officer towards the black Isuzu occupied by Mr. Rymes. Mr. Rymes drove the car beside the Respondent, opened the passenger door, and yelled to Respondent to get into the car. Mr. Rymes also grabbed the Respondent and attempted to help pull her into the car. At that point the Respondent kicked Officer Rogers in the left knee and as Officer Rogers continued to try to put the handcuffs on, the Respondent got partially into the car. Thereupon, Mr. Rymes started driving away with Officer Rogers running beside the automobile still holding onto the Respondent. Officer Rogers finally had to let go to avoid the risk of further injury. The vehicle driven by Mr. Rymes continued for several hundred feet until it was blocked by a vehicle driven by another law enforcement officer. Officer Rogers ran to the automobile driven by Mr. Rymes, removed the Respondent from the car, handcuffed her, and placed her in a police vehicle. Although Respondent had been drinking alcoholic beverages, she was not intoxicated at the time of the events described above. The Respondent has never been arrested or charged with a crime other than in the incident described above. /1
Recommendation Based on the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission issue a final order in this case concluding that the Respondent is in violation of Section 943.13(7), Florida Statutes, and Rule 11B-27.0011(4), Florida Administrative Code, and imposing a penalty of probationary status for one year conditioned on the Respondent not engaging in any conduct during the probationary period which constitutes failure to maintain good moral character within the meaning of Rule 11B-27.0011(4), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of May 1990. MICHAEL M. PARRISH 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 1st of day of May 1990.
Findings Of Fact Fuller Warren Crews was employed until 1959 as a police officer in Jacksonville, Florida. In 1959, he was permitted to resign rather than face disciplinary charges. In 1959, Crews pled guilty in Jacksonville to damage to telephone equipment, a misdemeanor. Crews was sentenced to six months in the county jail. In 1960, Crews was found guilty of possession of tools used in committing crimes and pled guilty to simple larceny in Tifton County, Georgia. Be was sentenced to three to five years in prison in Georgia. Crews was fully pardoned for the offense of possession of tools used in committing crimes on October 6, 1975. Approximately eight to ten years ago, Crews became active within tie Nassau County Sheriff's posse helping to reorganize those police auxiliary groups. He was very dedicated and did a fine job, eventually becoming Captain of the posse. Crews applied for a position as Deputy Sheriff in Nassau County in 1976. He was interviewed by the Sheriff, who he advised of his criminal record. The Sheriff desired to hire Crews and contacted the Police Standards and Training Commission. In January, 1976, the Sheriff's Department provided the PSTC with various data on Crews. This data constituted the application for certification by the Commission, which does not have an application form. This application led to the processing of Crews' certification over the next two years. The procedures of the Department delegated to individual law enforcement agencies the task of conducting background investigations. Basic background data on Crews' convictions and former employment was provided the PSTC prior to Crews' certification on February 3, 1978 (Transcript, pages 178 and 179). In the course of processing his application, Crews appeared informally before the Commission concerning his certification on August 20, 1976. At that time questions were asked of Crews by the Commission regarding his dismissal from the Jacksonville Police Department. Crews responded that he had been discharged because of charges involving unlawful damage to private property (Transcript, pages 129, 165 and 166). There was no indication that Crews failed in any way to disclose his past record either in his application or in his statements to the Commission. Crews was denied certification because of the Commission's interpretation of Chapter 112.011, Florida Statutes, to Crews' pardon and the Federal Firearms Control Act, 18 U.S.C. 922(h) (Exhibit #2). Crews' fingerprints were taken by the Sheriff's Department and forwarded to the Florida Department of Law Enforcement (FDLE) but not to the PSTC. The FDLE forwarded Crews' fingerprints to the Federal Bureau of Investigation (FBI). The FBI sent one fingerprint card and Crews' RAP sheet back to the FDLE but not to the PSTC, and the FDLE sent the fingerprint card and RAP sheet to the Sheriff's Department. Under the PSTC's standard procedures, the Sheriff's Department sent this data to the Commission when Crews was hired, the day after his certification. The Sheriff's Department had knowledge of Crews criminal convictions and dismissal from the Jacksonville Police Department from the RAP sheet and Crews' statements to the Sheriff. On February 3, 1978, the Commission certified Crews. There was a discussion of Crews' background by the Commission, particularly his pardon, after which Crews was certified. His certification resulted from the Commission's interpretation of the law (Transcript, pages 166, 167, 182, 184, 105 and 186. See also attached minutes, Exhibit #4 and letter from Smith to Long). According to a member of the Commission at that time, Crews' certification was not a clerical error but resulted from the Commission staff's failure to follow up on data which it possessed (Transcript, pages 189 and 190) Many co-workers, the Sheriff by whom Crews is employed, neighbors and others testified regarding Crews' reputation in the community and their personal assessments of Crews' character. He is considered to be truthful, trustworthy, honest and hardworking. He has worked as a deputy sheriff since 1978 and has a reputation as a fine professional law enforcement officer respected by his co- workers and associates, many of whom testified in his behalf.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Police Standards and Training Commission toe no action to revoke the certification of Fuller Warren Crews because it lacks authority to consider any grounds for revocation which preexisted its initial final action of certification, and because the record reflects that Fuller Warren Crews has maintained good moral character. DONE and ORDERED this 18th day of November, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Administrative Law Section The Capitol Tallahassee, Florida 32301 James Corrigan, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO.: 80-921 FULLER WARREN CREWS, Respondent. /
The Issue The Issue for consideration is this matter is whether the Respondent, Kinnett Dairies, Inc., should be placed on the State of Florida's convicted vendors list because of its conviction on January 9, 1990 for "making false statements to a federal agency."
Findings Of Fact The Department of General Services is the state agency required, pursuant to Section 287.133(3)(d), Florida Statutes, to maintain a list of the names and addresses of those persons who have been disqualified from the public contracting and purchasing process under that section. On May 16, 1991, Kinnett, pursuant to a plea agreement with the State of Georgia, entered a plea of nolo contendere to a one count felony charge brought under Section 16-10-22, Official Code of Georgia for conspiracy in restraint of trade. On July 31, 1991, Kinnett was convicted in federal court of a one count felony charge brought under Section 1 of the Sherman Antitrust Act, for a combination and conspiracy to suppress and eliminate competition by rigging bids. Pursuant to the requirements of the Florida statute in issue here, Kinnett made timely notification of those convictions to the Florida Department of General Services. Thereafter, based on those convictions, the Department concluded it was in the public interest to place Kinnett on the convicted vendors list. The parties have stipulated that concurrently with and as a part of the agreement for the entry of the plea of nolo contendere to the state charge, Kinnett entered into an agreement with the State of Georgia whereby it paid a fine of $10,000.00 and costs of an additional $10,000.00. It also cooperated fully with the investigation of the Attorney General of the State of Georgia which led up to the charge. On the same date, May 16, 1991, Kinnett also entered into an agreement with the United States Department of Justice whereby it plead guilt to one felony count, as alleged in the information, and agreed to pay criminal penalties of $300,000.00 over a four year period and $25,000.00 in civil damages to the United States. On July 19, 1989, Kinnett entered into a settlement agreement with the State of Florida regarding possible bid rigging of school requirements contracts in Florida by various dairies and paid settlement sums of $150,000.00. All penalties and civil liabilities due to the federal and state governments have been paid. Kinnett fully cooperated with both Florida and Georgia in connection with their investigations into its activities. It also cooperated with the federal Grand Jury investigating its activities, a matter which was confirmed in an October 8, 1991 letter from the federal prosecutor to the Department. No Kinnett employees were indicted as a result of the investigations by the federal and state governments as noted. No member of Kinnett's top management had knowledge of the alleged conduct of the four employees who were implicated in the misconduct involved herein. None of those four employees are still associated with Kinnett. Kinnett has implemented an active antitrust and ethics compliance program developed with the advice and assistance of experienced antitrust counsel. Inherent in this program is the adoption of a Code of Ethics and Standards of Conduct regarding antitrust matters; establishment of an ethics committee to monitor compliance; establishment of a reporting "hotline"; adoption of new bidding procedures bringing upper management into the pricing process; implementation of a training program for all personnel; and adoption of a policy and procedure review program to oversee both internal and external review of company ethics, policies and procedures. Going beyond the minimal requirements, Kinnett has arranged for outside accountants to perform a yearly, in-depth audit of all company books and accounting and pricing practices and has retained an expert in ethics to review existing policies and procedures and make recommendations for improvement. Kinnett has maintained its long-standing involvement in both civic and charitable activities in and around the Columbus, Georgia area and employs disabled veterans and military retirees, who currently make up 38% of its workers, when possible. It was recognized by the Georgia Department of Labor for its efforts in this area. Kinnett was one of the first companies in the Columbus, Georgia area to test both employees and job applicants for drug use, and has endorsed the Mayor's Task Force for Drug Free Columbus and consistent therewith has been instrumental in assisting other companies to establish programs to address substance abuse. Its officers are active as leaders in various civic organizations and it has given generously to numerous public, civic and charitable organizations. No matters in aggravation, other than the existence of the pleas, the convictions, and the penalties involved herein was presented by the Department. No evidence was presented relating to a conviction in January, 1990.
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.
