The Issue Whether Respondent failed to maintain the minimum qualifications for employment or appointment as a law enforcement or correctional officer by failing to exhibit good moral character and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of correctional officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified correctional officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against correctional officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a correctional officer, and holds Correctional Certificate Number 77370. He was initially certified on April 9, 1987. During the period from his initial certification up to 2007, Respondent rose through the ranks, achieving the rank of captain. In 2007, as he neared his date of retirement, Respondent requested a voluntary demotion to sergeant. The duties associated with being a “correctional officer in charge” were causing difficulties with his marriage, and his voluntary demotion to sergeant allowed him to “lay out the last five years so I could use my leave up easier and kind of have a life.” Respondent has not previously been the subject of any disciplinary action, nor was there any allegation of prior disciplinary history involving Respondent. On March 1, 2010, Respondent served as a correctional officer at the Lowell Correctional Institution. Respondent knew Tracy Coer as an inmate at the Lowell Correctional Institution. Respondent occasionally tasked inmate Coer, along with other inmates, with cleaning the correctional officers? supply room and staff bathroom at the end of a shift. Respondent testified that such activities were never done without another officer present in the officer station. On the evening of March 1, 2010, Respondent was assigned to escort inmate Coer from her dormitory to the medical unit for a breathing treatment. The medical unit has an exterior door, with a clear window described as being “about six inches long and . . . maybe about a foot and a half tall.” The exterior door led into a waiting room, which contained bench seating for inmates. A second secured door led from the inmate?s waiting room into the medical facility. Directly inside the second secured door was a desk for a monitoring correctional officer, which had a clear view into the inmate waiting room. From the dormitory to the medical unit, Respondent and inmate Coer were in view of the guard tower. Respondent intended to turn inmate Coer over to the custody of the monitoring correctional officer on duty and leave. When Respondent arrived at the medical unit, there was no correctional officer on duty at the waiting room monitoring desk.2/ Therefore, Respondent transferred custody of inmate Coer directly to medical staff. Since the monitoring officer was not at her post, Respondent stayed in the waiting room. After about 30 minutes, inmate Coer was returned by medical staff to the inmate waiting room. The monitoring officer had not returned to her duty station, and the waiting room was vacant, but for Respondent and inmate Coer. The time was about 9:25 or 9:30 p.m. It was dark outside, but the sidewalk was lit by security lights. It is Respondent?s practice to always be in view of another correctional officer when with a female inmate. However, for the period after inmate Coer was placed into Respondent?s custody in the waiting room, and before they exited through the exterior door, they were not in direct view of medical staff, the guard tower, or any other correctional officer. Respondent testified that as he was preparing to escort inmate Coer from the medical unit and return her to her dormitory, she became “off balance.” In Respondent?s experience, breathing procedures can make persons “dizzy and lightheaded.” He did not want her to fall, so Respondent grabbed inmate Coer?s jacket sleeve to steady her. She turned towards him, whereupon he grabbed her other sleeve to hold her up. According to Respondent “we came in close proximity at that time and shortly within like seconds I heard the door opening and I turned and looked over my right shoulder and Officer Richardson was standing in the door.” Respondent denied that he kissed inmate Coer, that he tried to kiss inmate Coer, or that he ever tried to kiss any inmate. Officer Richardson testified that she was returning to the medical unit from outside, and was preparing to enter the facility through the exterior door. She looked through the window, and saw Respondent and inmate Tracy Coer “holding hands and he leaned down to kiss her. It was like a lip to lip peck maybe.” She testified that she was able to see lip-to-lip contact between Respondent and inmate Coer. Her description gave a clear impression of a consensual act, with Respondent and inmate Coer holding hands, and inmate Coer in “a leaning upward motion so it?s not really unbalanced, but her face was leaning up.” After the incident, Officer Richardson testified that she reported what she observed to a fellow officer, and then to her captain. She was instructed to fill out an incident report describing her observations, which she did. Her incident report is consistent with and supplements her testimony. After submitting the incident report, Officer Richardson had no further involvement in the investigation of the incident until her testimony at the hearing. Officer Richardson testified that she had a clear view of the inmate waiting room, and of Respondent and inmate Coer, through the 6” x 18” window. Respondent testified that the windows consist of thick security glass, and that “[w]henever you approach one of those small windows at night, the reflection from the security lights, the shadows that are moving . . . [y]ou can?t see as clearly as you think you can.” Inmate Coer did not testify at the final hearing. Instead, Petitioner submitted an affidavit of inmate Coer describing the incident that forms the basis of the Administrative Complaint. The affidavit is hearsay. Inmate Coer?s affidavit could be said to supplement and corroborate Officer Richardson?s testimony in that they both describe an incident that culminated in a kiss. However, the affidavit described an act that was sudden, abrupt, and against inmate Coer?s will, while Officer Richardson described a more intimate and consensual act. Therefore, the affidavit does not serve to establish a firm belief or conviction in the mind of the undersigned as to the truth of the allegations sought to be established, but rather suggests a degree of imprecision or confusion as to the facts in issue.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of June, 2012.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint, as amended, filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been the holder of a Class "B" security agency license, number B 0001057. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of grand theft, a third-degree felony, in violation of Section 812.014(1)(a), Florida Statutes. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of perjury not in an official proceeding, a first-degree misdemeanor, in violation of Section 837.012, Florida Statutes. In the foregoing proceeding, the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, placed Respondent on probation for terms of five years and one year to run concurrently, and ordered Respondent to pay restitution in the amount of $15,783.67 to the victim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint, as amended, and revoking Respondent's Class "B" security agency license number B 0001057. DONE and ENTERED this 21st day of February, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 95-5217 Petitioner's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Mr. Daniel D. Goldberg 2812 Southwest 65th Avenue Miramar, Florida 33023 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2004.
The Issue The issue in this case is whether Respondent, Theodore Lazier, Jr., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement, Criminal Justice Standards and Training Commission, and dated June 18, 2004, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a law enforcement officer and investigating complaints against individuals holding certificates as law enforcement officers in the State of Florida, pursuant to Section 943.3195, Florida Statutes. At the times pertinent to this matter, Respondent, Theodore Lazier, Jr., was certified by the Commission as a law enforcement officer, having been issued Law Enforcement Certificate Number 138687 on August 20, 1993. Since being certified, Mr. Lazier as been employed as a correctional officer at the Dade Correctional Institution (hereinafter referred to as the "Correctional Institution"), a state facility. On and between November 14, 1999 and September 24, 2003, Mr. Lazier, while working as a recreational supervisor, brought items declared to be contraband into the Correctional Institution. Those items included movies, candy, razor blades, and one pair of athletic shoes with cleats. When the items of contraband were discovered by Correctional Institution officials, Mr. Lazier admitted bringing the items to the facility, a fact which he also admitted at the final hearing. He also explained why he had introduced the items into the facility and, while his explanation does not exonerate him from the charges in this case and apparently constituted grounds to terminate his employment at the facility, his explanation at least dispelled any thought that he had introduced the items for any purpose other than assisting him in the discharge of his duties. As for the movies, Mr. Lazier testified convincingly and without any evidence to the contrary being offered by the Commission that he had been given specific permission to show movies to inmates as long as those movies did not contain sex or violence. That permission was given by the individual who served as warden prior to the current warden's employment. The candy consisted of small pieces of primarily hard candy which Mr. Lazier used to reward inmates that assisted him as "aides" and other inmates who gave him "thoughts for the day." The razor blades, which are the most troublesome items of contraband he brought into the facility, were used by inmates, under Mr. Lazier's supervision to work on sports equipment, like the weight-lifting benches. The razor blades were collected, accounted for, and stored under lock and key after their use. Finally, the one pair of shoes introduced into the facility by Mr. Lazier was used by inmates participating in football. The bringing of the items of contraband into the Correctional Institution, other than the movies, constituted an act which would constitute a felony offense as specified in Section 944.47(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Theodore Lazier, Jr., violated Section 943.1395(7); dismissing the allegation that he violated Section 943.1395(6); and suspending his certification for a period of one year. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 22nd day of December, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Theodore Lazier, Jr. 225856 South West 132d Court Naranja, Florida 33032 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour. Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk." There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers 5 and 4 respectively. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered suspending the certificate of the Respondent for a period of six months. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816 The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not accepted to the extent that it argues that the incident involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense. The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time. Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire Post Office Drawer 1792 Lake City, Florida 32056-1792 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue Whether Petitioner has cause to terminate the Respondent's employment as alleged in the Administrative Complaint dated October 20, 1998.
Findings Of Fact On August 14, 1998, Respondent, a teacher employed by Petitioner, entered a plea of guilty to the charge of exploitation of an elderly person, which is a first degree felony pursuant to Section 825.103, Florida Statutes. At the same time, Respondent also entered a plea of guilty to the charge of petit theft over $100.00, which is a first degree misdemeanor. In entering these pleas, Respondent advised the court, pursuant to Rule 3.172(d), Florida Rules of Criminal Procedure, that she believed the pleas were in her best interest and that she was maintaining her innocence to the charges. The court withheld adjudication of guilt as to the charge of exploitation of an elderly person, adjudicated her guilty of petit theft, sentenced her to one day of time served, placed her on probation for 20 years, and required that she pay restitution to the Estate of Lillie Keller in the amount of $52,000.00. 1/ By letter dated October 21, 1997, Petitioner reassigned Respondent to a position with no direct contact with children pending the outcome of the criminal charges. Following an investigation, the superintendent of schools recommended to the school board that Respondent's employment be suspended without pay and terminated. On October 7, 1998, the school board voted to adopt that recommendation. The recommendation and the subsequent vote to adopt the recommendation were based on Respondent's plea of guilty to the charge of exploitation of an elderly person. Petitioner followed its procedural rules in investigating this matter and in voting to terminate Respondent's employment. As of October 7, 1998, Respondent held a professional services contract and had been employed by Petitioner for approximately 13 years as a teacher. Section 231.02(1), Florida Statutes, requires school board employees to be of good moral character. Respondent, as a teacher, is required by Section 231.02(2), Florida Statutes, to be fingerprinted and screened by the Florida Department of Law Enforcement. Section 435.03(2), Florida Statutes, provides, in pertinent part, as follows: (2) Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (v) Section 825.103, relating to exploitation of an elderly person or disabled adult, if the offense was a felony. Petitioner's Rule 3.12, pertaining to criminal background checks of current and prospective employees, has been duly enacted and provides, in pertinent part, as follows: Definitions: For the purposes of this policy: * * * b. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of whether adjudication is withheld. * * * 3. A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. Section M of the collective bargaining agreement between the Petitioner and the Palm Beach County Classroom Teachers' Association provides for progressive discipline of covered employees such as Respondent. Section M provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With a Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with the provisions of this Section, including just cause and applicable law. ... Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable law. Section 435.06(2), Florida Statutes, requires an employing agency, such as the Petitioner, to take the following action when an employee has failed to meet the requirements of Section 435.03(2), Florida Statutes: The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that terminates Respondent's employment based on the findings of fact and conclusions of law contained herein. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999.
The Issue The issue in this case is whether Respondent's certification as a firefighter should be revoked.
Findings Of Fact Respondent, James F. Mathis, is a certified firefighter. On April 7, 1997, Respondent pled guilty to the charge of unlawful sexual battery upon a child under the age of 16, contrary to Section 800.04(3), Florida Statutes. Respondent was sentenced to 180 days in jail, ten years' probation, no contact with the victim, no allowance for early termination of probation, admission to sex offender treatment, and payment of court costs. However, adjudication was withheld. Respondent presented evidence to show: the factual basis for the charge; his rehabilitation; the unlikelihood of a repeat offense; how his plea of guilty came to Petitioner's attention; Respondent's dedication and commitment to quality service as a firefighter; the quality of Respondent's service as a firefighter; and the desire of the Bayshore Fire Protection and Rescue Service District and the local community to have the benefit of Respondent's services as an employed firefighter. Petitioner did not contest Respondent's evidence but took the position that the evidence was irrelevant. As reflected in the Conclusions of Law, it is agreed that the evidence was irrelevant, and no additional findings are necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order revoking Respondent's certification as a firefighter. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000. COPIES FURNISHED: Terrence F. Lenick, Esquire Post Office Box 430 Bonita Springs, Florida 34133 James F. Mathis 11260 Shirley Lane North Fort Myers, Florida 33917 Lisa S. Santucci, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Bill Nelson, State Treasurer and Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a) and (7), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a female, African-American. Petitioner was first employed by the Department from June 8, 1990 through October 10, 1990. Petitioner notified the Department by letter dated October 5, 1990, that she was resigning her position with the Department effective October 11, 1990. Subsequently, Petitioner applied for a position as correctional officer with the Department on April 3, 1998, and again on October 23, 1998, but was not hired on either of these occasions. Petitioner filed a Charge of Discrimination with the Commission on February 3, 1999, alleging that the Department had discriminated against her by denying her employment while hiring less experienced white correctional officers and that the Department had denied her employment in retaliation for her participation in the USA Case against the Department. There is sufficient evidence to show that Petitioner was a member of the class action suit referred to as the USA Case. On September 8, 1999, Petitioner again applied for a position as a correctional officer with the Department and was hired as a correctional officer with the Department on November 15, 1999. However, Petitioner abruptly resigned that position on January 12, 2000, giving unfair treatment as the basis for her resignation. Petitioner's testimony, which is credible, was that sometime in 2000 she applied for a position as a correctional officer with the Department by sending an application to the Tampa Service Center (an administrative branch of the Department) and that the Tampa Service Center requested that she take a pre-employment drug test and physical. Petitioner testified that since the Department requested that she take the pre-employment drug test and physical it was incumbent upon the Department to offer her the position. Petitioner failed to present sufficient evidence to show that the Department's policies required that she be offered a position once she was asked to submit to a pre-employment physical and drug test. Offers of employment by the Department are conditional only and are contingent upon a satisfactory background check. However, before any job offer was extended to Petitioner, the Tampa Service Center closed down and its records were forwarded to the Orlando Service Center (another administrative branch of the Department). Subsequently, Petitioner contacted the Orlando Service Center concerning her application. The Orlando Service Center was unable to locate any application from Petitioner or any data that could have been electronically stored. Nevertheless, sometime during the latter part of 2000, Petitioner was allowed to resubmit her application to the Orlando Service Center and was considered for a position. The Orlando Service Center determined that Petitioner failed the required background check based on Petitioner's short tenures on two previous employment occasions followed by abrupt resignations. Petitioner's application for employment was rejected on this basis. Petitioner presented evidence that an employee of the Department, Scott MacMeeken had resigned on at least two occasions and had been rehired. However, Petitioner failed to present any evidence as to MacMeeken's race or whether MacMeeken was equally or less qualified than Petitioner. Likewise, Petitioner failed to present sufficient evidence to show that white applicants for the positions which Petitioner had applied for but was not hired, were equally or less qualified than Petitioner. Petitioner failed to present sufficient evidence to show that, during the period of time in question, the Department hired less experienced white correctional officers over equally qualified or more qualified non-white correctional officers, or that the Department, in its hiring process, during this period of time, gave preference to white applicants for correctional officer positions over non-white applicants for correctional officer positions. Petitioner failed to present sufficient evidence to show that either her race, African-American, or her participation in any prior law suits, specifically the USA Case, or the filing of the Complaint with the Commission formed the basis for the Department's rejection of her applications in 1998 or 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 11th day of March, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gloria J. Browdy 12042 Villa Road Spring Hill, Florida 34609 WILLIAM R. CAVE 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 11th day of March, 2002. Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.
Findings Of Fact Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.
The Issue Whether Respondent violated Subsections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2002),1 and Florida Administrative Code Rules 11B-27.0011(4)(a), 11B-27.0011(4)(c), and 11B-20.0012(1)(f), and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Odom was a correctional officer working as a sergeant at Century Correctional Institution (Century) in Century, Florida. Jarl Johnson (Johnson) is a correctional officer who was employed at Century while Odom was employed there. Johnson went to the dormitory where Odom was stationed to check equipment. He advised Odom that he would do the head count of the inmates, but Odom indicated that he would do the head count instead of Johnson. Odom took two inmates, who were in the officers' station, with him to do the head count, and the inmates carried flashlights with them while doing the head count. Inmates are prohibited from doing head counts and carrying flashlights. Vera Elliot (Elliot) is a correctional officer, who is employed at Century. On February 14, 2003, she was working a double shift. One of her shifts that day was the same shift on which Odom was working. Elliot observed Odom and two inmates do a head count of the inmates. The two inmates came into the officers' station, while Odom was present. At that time, no inmates were allowed in the officers' station. On that same evening, Elliot saw Odom give a white box containing food to the two inmates. Correctional officers are not allowed to give food to inmates. Gregory Gilliard (Gilliard) is a correctional officer, who was employed at Century while Odom was employed at Century. Gilliard observed an inmate and Odom in the laundry room directly behind the officers' station. The inmate was polishing Odom's shoes. Gilliard also observed another inmate in the officers' station. The doors to the laundry room were open, making the dormitory accessible, which is a breach of security. On May 8, 2003, Jeffrey R. Brooker (Brooker), a correctional investigator for the Office of the Inspector General of the Department of Corrections, interviewed Odom concerning complaints against staff at Century. While under oath, Odom told Brooker that he never allowed inmates to carry flashlights, never gave food to inmates, never allowed inmates in the officers' station, and never allowed an inmate to polish his shoes. These sworn statements were false. Based on the statements given by Odom to Brooker, it is found that Odom knew that his statements were not true. The Commission alleged in the Administrative Complaint that Odom used excessive or unnecessary force on an inmate. The only evidence presented concerning these allegations was hearsay. Subsection 120.57(1)(c), Florida Statutes (2005), provides: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Therefore, no finding is made that excessive or unnecessary force was used by Odom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Richard L. Odom violated Subsection 943.13(7), Florida Statutes, and revoking his certification as a correctional officer. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 29th day of March, 2006.
