The Issue The issue in this case is whether the Department of Health and Rehabilitative Services improperly awarded a contract to National Health Laboratories, Inc. for the reasons set forth in the petition.
Findings Of Fact By Invitation to Bid mailed March 26, 1993 (ITB), the Dade County Public Health Unit requested bids on an annual contract for the performance of clinical laboratory test services. The Dade County Public Health Unit is under the Department of Health and Rehabilitative Services (HRS). The contracting agency shall hereafter be referred to as HRS. The ITB called for the opening of bids on April 12, 1993. Six bids were timely submitted. The apparent low bid was submitted by National Health Laboratories, Inc. (NHL). The NHL bid was $202,271. The second low bid was submitted by Continental Medical Laboratory, Inc. (CML). The CML bid was $241,100. HRS issued a notice of intent to award the contract to NHL. CML timely protested. There is no issue as to the responsiveness of the CML bid. The only issue as to the responsiveness of the NHL bid concerns the matters raised by CML. CML's petition alleges that the bid of NHL was defective because the Sworn Statement Pursuant to Section 287.133(3)(a), Florida Statutes, on Public Entity Crimes (Public Entity Crime Affidavit) was incomplete, an agreement attached to the Public Entity Crime Affidavit did not relieve NHL from disqualification concerning CHAMPUS fraud, and NHL should be disqualified from bidding because it failed timely to inform the Department of Management Services of the company's conviction of a public entity crime. Paragraph 10 of the General Conditions of the ITB allows HRS to "waive any minor irregularity or technicality in bids received." However, special conditions provide, in part: PUBLIC ENTITY CRIMES Any person submitting a bid or proposal in response to this invitation must execute the enclosed [Public Entity Affidavit], including proper check(s), in the space(s) provided, and enclose it with the bid/proposal. Failure to complete this form in every detail and submit it with your proposal will result in immediate disqualification of your bid. The Public Entity Crime Affidavit completed by NHL and submitted with its bid was executed and notarized on April 9, 1993. Paragraph six of the form affidavit states: Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in the management of the entity, or an affiliate of an entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] The next paragraph of the Public Entity Crime Affidavit form states: I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH I (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. In completing the Public Entity Crime Affidavit, NHL penned in, just over the second alternative that discloses a conviction, "See Attached." The attachment was a copy of an Agreement dated December 31, 1992, between NHL and the "state of Florida" (Settlement Agreement). The agreement was executed by an NHL officer and the Director, Medicaid Fraud Control Unit of the Auditor General Office. The Auditor General's Office is not part of the Department of Management Services. The Settlement Agreement concerns invoices from NHL to the Florida Medicaid program for certain cholesterol and iron tests from January 1, 1987, through November 30, 1992. The Settlement Agreement requires NHL to pay as restitution to the State of Florida $1,470,917. In return, the state of Florida, for itself and on behalf of its agents and assigns, will release and forever discharge NHL, its current or former officers, directors, employees, agents, shareholders, affiliates, assigns and successors from any and all claims, actions, demands or causes of action including penalties or interest against any of them, either civil or criminal, as regards Medicaid reimbursement [for certain cholesterol and iron tests] between January 1, 1987 and November 30, 1992, except that nothing contained in this Settlement Agreement shall preclude the state Medicaid program from seeking recoupment of payments made [for certain cholesterol tests] during the period covered by this Settlement Agreement, subject to the understanding that NHL will contest any such recoupment action on the grounds that such payments were appropriate. The Settlement Agreement also provides: The state of Florida agrees that neither the Settlement Agreement nor any federal criminal conviction or other sanction of the corporation or a current or former officer or employee of NHL as regards claims for Medicaid reimbursement [for certain cholesterol and iron tests] [b]etween January 1, 1987 and November 30, 1992 will be the basis for a state exclusion of NHL from the Florida Medicaid program. NHL is a company that provides laboratory testing nationally and receives payment for many of its services from government sources, such as Medicaid, Medicare, or CHAMPUS. CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services. During the period of 1987 through 1992, NHL supplied certain cholesterol and iron testing, in addition to that specifically requested by the health-care provider, at little or no cost to the health-care provider. But NHL invoiced various government payors at higher rates. On December 18, 1992, NHL entered guilty pleas to two counts of criminal fraud involving these practices as they concern the CHAMPUS program. These pleas were the bases of a conviction and sentence that included a criminal fine of $1,000,000. One or two former officers entered guilty pleas to charges of criminal fraud involving these practices as they concern the Medicaid program. As part of the settlement, NHL paid the United States the sum of $100,000,000. At the same time, NHL was negotiating with various states, including Florida, with respect to the above-described billing practices. On December 8, 1992, the Director of the Medicaid Fraud Control Unit in the Florida Office of the Auditor General wrote a letter to NHL confirming a proposed settlement. The conditions of the settlement are incorporated in the above- described Settlement Agreement. On December 17, 1992, the Assistant Secretary for Medicaid in HRS mailed a letter to NHL agreeing that HRS would not take administrative action for the above-described cholesterol and iron claims submitted for reimbursement by NHL to the Florida Medicaid program. NHL did not inform the Department of Management Services of the guilty plea, conviction, and $1,000,000 criminal fine. However, based probably on information received in early February 1993 from another governmental entity in Florida, the Department of Management Services, on February 8, 1993, sent a letter to NHL advising it that the Department had received information that NHL had been convicted of a public entity crime and requesting copies of the charges and final court action. NHL complied and the Department's investigation is continuing. On February 18, 1993, HRS Deputy Secretary for Health, sent a memorandum to all of the County Public Health Units directors and administrators advising them of concerns about laboratory fraud and attaching a recent report concerning the NHL case. The report described the NHL guilty pleas, conviction, and sentencing, as well as the business practices that led to the prosecution. By memorandum dated March 18, 1993, HRS Assistant Secretary for Medicaid informed HRS Depute Secretary for Health that the Auditor General had entered into the Settlement Agreement. The memorandum states that, on December 17, 1992, the Assistant Secretary signed an agreement with NHL not to terminate it from the Florida Medicaid program, which was the "same treatment afforded many other providers--including [County Public Health Units]--who overbilled the Medicaid program. The Assistant Secretary's memorandum describes the settlement as requiring NHL to make "full restitution," although the $1.4 million in restitution involves only the iron test and the State of Florida and NHL may still litigate whether any reimbursement is due for the cholesterol tests. The failure of NHL to check the second alternative on the Public Entity Crime Affidavit did not confer an economic advantage on NHL in the subject procurement. The material attached to the affidavit sufficiently informed HRS of the criminal conviction of NHL. Likewise, the omission of any mention of CHAMPUS claims in Paragraphs two and three of the Settlement Agreement did not confer any economic advantage on NHL in the procurement. The purpose of mentioning only Medicaid in the Settlement Agreement is that Florida has no jurisdiction over the CHAMPUS program. NHL was concerned only that Florida not terminate NHL's participation in the program over which Florida had jurisdiction--the Medicaid program. These references to "Medicaid reimbursement" are merely descriptive and are not intended to limit the scope of the exoneration purportedly effectuated in the Settlement Agreement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the bid protest of Continental Medical Laboratory, Inc. ENTERED on August 24, 1993, 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 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3951BID Treatment Accorded Proposed Findings of Respondent and Intervenor 1-8 and 11: adopted or adopted in substance. 9-10 and 12-15: rejected as subordinate. 16-31: adopted or adopted in substance. 32-37: rejected as subordinate and irrelevant. 38-43 and 45-48: rejected as irrelevant and legal argument. 44: adopted. 49-50: adopted as to absence of material variations. 51: rejected as subordinate and recitation of evidence. Treatment Accorded Proposed Findings of Petitioner 1-14 and 16-17: adopted or adopted in substance. 15: rejected as legal argument and unsupported by the appropriate weight of the evidence. 18-21: rejected as subordinate, repetitious, and legal argument. 22-27: adopted in substance. 28: rejected as irrelevant. 29 (first sentence): rejected as repetitious and irrelevant. 29 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 30: adopted, but the period of the delay of DMS review in this case was too short to make any difference. 31: rejected as unsupported by the appropriate weight of the evidence with respect to a delay of such a short duration. 32: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133. 33: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133, at least under the facts of the present case. 34: rejected as irrelevant. 35: rejected as legal argument and unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Geoffrey Kirk Adorno & Zeder, P.A. 2601 S. Bayshore Dr., Ste. 1600 Miami, Florida 33133 Morton Laitner, District Counsel District 11 Legal Office 401 NW 2d Ave., Ste. N-1014 Miami, Florida 33128 Thomas F. Panza Seann Michael Frazier Panza, Maurer 3081 E. Commercial Blvd., Ste. 200 Ft. Lauderdale, Florida 33308 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
Findings Of Fact The Petitioner, Francisco Palafox, Jr., made applications for licensure as an unarmed guard and an armed guard. In both applications he answered that he had never been arrested. The Petitioner's fingerprints were checked by the Respondent Division through the Federal Bureau of Investigation, and a record of arrest in San Francisco, California, was revealed for Frank Madrano Palafox, Social Security #560-96-6038, born January 14, 1953, in Arizona. Correspondence with the authorities resulted in receipt of records from San Francisco, California (Exhibit 1), which reveal that Frank Madrano Palafox was arrested and charged on August 21, 1973, with possession of a prohibited weapon, but later the charge was dropped to prohibited loitering while carrying a concealed weapon, a misdemeanor. Palafox's occupation on these records is given as Army. The Petitioner produced his military records of discharge (DD 214), on which Petitioner's name, birth date, social security number and birth place were the same as that on the FBI report. Petitioner said that at the time of his arrest he had loaned his identification to another soldier. However, his DD 214 show that he was on leave at the time the arrest occurred, and that he was charged for excessive unearned military leave for the same number of days the arrest record shows that Palafox was jailed. The Petitioner then remembered he was arrested for "aiding and abetting prostitution." The Petitioner did not report the arrest for aiding and abetting on his application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner's applications for licensure as an unarmed guard and an armed guard be denied. DONE and ORDERED this 9th day of January, 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 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Francisco Palafox, Jr. 1551 Michigan Avenue, Apt. 12A Miami Beach, Florida 33139
The Issue An administrative complaint dated October 23, 1997, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he falsely indicated on his licensure application that he had never been convicted of a crime nor pled guilty or nolo contendere. The issue for disposition in this proceeding is whether the violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Ibrahim Z. Gonzalez, is, and has been at all relevant times, a licensed Florida real estate broker-salesperson, having been issued license no. 3003291 in accordance with Chapter 475, Florida Statutes. On February 17, 1984, in San Diego, California, Respondent pled guilty to one count of sexual battery- a felony, and was jailed, fined, and placed on probation. Respondent's court-appointed attorney told him the conviction would only affect him if he sought employment with the federal government or law enforcement. On August 3, 1989, after a plea of guilty, Respondent was convicted in the U. S. District Court for the Southern District of New York of making false statements on a government application. Specifically, in 1985, Respondent withheld disclosure of the 1984 California conviction described above when he applied for employment with the U. S. Postal Service. For the federal conviction, he was placed on probation and fined $1,000. By 1989, Respondent had obtained a real estate license in New York. His court-appointed lawyer advised him to "stick to real estate" because, as the California lawyer told him, he would never be able to work for the federal government or in law enforcement. In May 1995, Respondent applied for licensure as a real estate broker in Florida. On the application form he answered "no" to this question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES", attach the details including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. The affidavit that Respondent executed at the end of the application form states: The above named, and undersigned, applicant for licensure as real estate broker under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. Respondent contends that he did not disclose his prior convictions when he applied to practice real estate in New York and Pennsylvania and he remains licensed in those states. He claims that because real estate has nothing to do with law enforcement or federal employment, he did not have to reveal the convictions on his application. Respondent has practiced his real estate profession in Florida for 3 years without any disciplinary incidents.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter its final order finding Ibrahim Z. Gonzalez guilty of violating Section 475.25(1)(m), Florida Statutes, and revoking his Florida real estate brokers' license. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Legal Section, Suite N 308 Zora Neale Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1771 Francisco Colon, Jr. 341 North Maitland Avenue Suite 360 Maitland, Florida 32751 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following facts were found: At all times material to this proceeding, Respondent held a Class "A", private investigative agency license Number GA 0002275 and a Class "C", private investigator license number GC 0001218. Respondent has been actively engaged as a private investigator in the Daytona Beach/Volusia County area of the State of Florida for over 25 years. A substantial portion of Respondent's activities as a investigator, are performed for attorneys representing both Plaintiffs and Defendants who employ the Respondent to investigate accidents, locate and question witnesses, photograph vehicles and sites, serve subpoenas for trial and deposition, and on occasion to perform surveillance. Records of the Circuit Court for Volusia County, Florida, reflect that Respondent was arrested on September 9, 1982 by the Ormond Beach, Florida, Police Department and charged with Attempted Murder. The State Attorney For The Seventh Judicial Circuit, by Information dated September 22, 1982, charged the Respondent with Attempted First Degree Murder and Aggravated Battery. By Order of August 10, 1982, the Circuit Court of Volusia County, Florida, accepted the Respondent's plea of nolo contendere to the charge of Aggravated Battery, a Second Degree Felony. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of 5 years. Respondent has no previous criminal record, although once arrested in 1974 on a complaint that was Nolle Prosequi by the State of Florida as a case of mistaken identity. Respondent's testimony that he was aware of only 1 complaint to the Department against him as a private investigator and that that complaint was disposed of as "unfound" went unrebutted. The circumstances that led up to Respondent's arrest on September 9, 1982 were domestic in nature: The Respondent objected to a relationship that had developed between his 12-year-old daughter, Vicky, an eighth grade student, and Thomas Parker (Parker) a 17-year-old boy about a year before the shooting incident on September 9, 1982. The Respondent came to disapprove of Parker because of Respondent's view that Parker was too old for his daughter, did not go to work or school, had no parental supervision or discipline, and was of dubious character and reputation. Respondent's efforts to terminate the relationship were frustrated. Respondent became convinced that Parker had introduced his daughter to sex, alcohol and the use of marijuana and other drugs. Respondent forbade his daughter from seeing Parker but the relationship continued and caused friction and tension within the family. Within a year, Vicky went from an "A" student to a "drop-out". Respondent sought advice and assistance from friends and public officials in regard to terminating this relationship but to no avail. Vicky was sent to live with Respondent's son in another part of the state but was brought back home when Parker began to pose a threat to the tranquility of the son's home. During the evening of September 8, 1982, Respondent and his wife, Louise Kinney, discovered that Vicky was missing from her bedroom. Respondent proceeded to search for Vicky but to no avail. Respondent reported this to the Ormond Beach Police Department because he thought Vicky had run away and was in the accompany of Parker. Sometime between 3:00 a.m. and 3:30 a.m on September 9, 1982, Respondent heard someone at Vicky's bedroom window and went outside to "check it out" with a .357 magnum pistol, a metal baseball bat and a flashlight. Respondent found Parker and a friend helping Vicky into her bedroom window. When Parker and his friend saw Respondent they ran and Respondent gave chase. While chasing Parker, Respondent tripped over a vent pipe to a storage tank and the pistol discharged hitting Parker in the lower back. Respondent's testimony that he did not intend to shoot Parker and that the shooting was accidental went unrebutted. These comments are consistent with Respondent's explanation to the police officers called to the scene of the shooting and consistent with his comments to Dr. Barnard, a psychiatrist. Respondent's testimony that it was his intent to only hold Parker at the scene for the police so that Respondent could charge Parker with trespassing and possibly relieve a bad situation at home went unrebutted. Neither Parker nor his friend were armed. While Dr. Barnard's report indicates that Respondent was legally sane and competent at the time of the shooting, the testimony of Dr. Maximo Hancock, a psychiatrist and Dr. Barnard's initial and supplemental reports indicate that Respondent was under a tremendous emotional strain that could have resulted in Respondent reacting without knowing what he was doing at the time. Parker has brought a civil suit against Respondent for damages predicated in the part upon allegations that Respondent's action constituted negligence in a deliberate assault or battery. Respondent homeowner's insurance carrier which insured Respondent for negligence but not for deliberate and willful acts, has "accepted the risk" and is furnishing Respondent with legal defense in this civil litigation. Of the 10 witnesses to testify for Respondent, 8 of them were attorneys that had known Respondent for a period of time and had employed Respondent before and after the shooting incident to perform those services listed in paragraph 2 above. The general consensus of these witnesses was that the Respondent enjoyed an excellent reputation as an investigator for skill and competency, trustworthiness and high ethical standards, and for pursuit of his investigative duties without breach of the peace. None of these witnesses expressed any reservation or hesitancy about continuing to use Respondent's services because of any propensity toward violence. These witnesses viewed the shooting incident of which all were aware, as an isolated personal matter unrelated to and outside the scope of his activities as an investigator.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Department of State issue a final order finding the Respondent not guilty of the violations as charged in the Administrative Complaint and that the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 22nd day of July, 1985, in Tallahassee, Leon County, Florida. COPIES FURNISHED: H. James V. Antista, Esquire Department of State LL 10, The Capitol Tallahassee, Florida 32301 Henry P. Duffett 120 E. Granada Boulevard Post Office Box 2633 Ormond Beach, Florida 32075 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1985. =================================================================
Findings Of Fact The Respondent Michael Rush is a Doctor of Podiatry having been issued license number PO 0000529. The Respondent Rush was charged with and convicted of conspiracy to possess and import marijuana, Title 21 USC 841(a)(1), in the United States District Court, Connecticut. On March 30, 1981, the Respondent's conviction was affirmed, United States v. Rush, 666 F.2d 10 (2nd Cir. 1981). The Respondent Rush was incarcerated for a period of fourteen months, paid a fine of $15,000 and forfeited $33,000 from his savings account to the federal government pursuant to 21 USC 881(a)(6)(1976). The Respondent Rush is a resident of Broward County, Florida and maintains a professional office at 4700 Sheridan Street, Hollywood, Florida. Prior to the instant conviction, the Respondent Rush had never been charged with or convicted of any crime. The Respondent Rush has been active in community affairs, having participated in Little League, Boy Scouts, the Broward County Fair, and has received character references from a variety of local community leaders. The Respondent Rush is currently practicing his profession, has obtained professional liability insurance through the Podiatry Trust and is on the staff of Community Hospital of North Broward and Hollywood Pavillion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Michael Rush by the Board of Podiatry be dismissed. DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
The Issue Whether Respondent, a certified correctional officer, while under oath, did make false statements, which she did not believe to be true, in an official proceeding regarding a material matter, and, if so, what discipline should be imposed.
Findings Of Fact Based upon observation of the demeanor and candor of each witness; stipulations by the parties; documentary materials received in evidence; and evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2004), the following relevant and material facts, arrived at impartially and based solely on information presented at the final hearing, are determined: Deputy Marvina K. Johnson was certified by the Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), on September 17, 1991; was issued Correctional Certificate Number 62620; and, on June 23, 2000, was issued Instructor Certificate Number 211202. At all times material, Ms. Johnson was employed by the Manatee County Sheriff's Department (Sheriff's Department) until her dismissal in November of 2003. At some time during the month of June 2003, Ms. Johnson met Bruce Straubel in a local gym. Shortly after their initial meeting, the two became romantically involved. This romantic relationship progressed to the point that Mr. Straubel moved into Ms. Johnson's residence; thereafter, they established joint bank accounts and shared housekeeping and household expenses. At all times heretofore, Mr. Straubel was working in the construction industry. The evidence demonstrated that Ms. Johnson did not know and that she was not informed by Mr. Straubel that he was a convicted felon serving five years' probation at the time of their initial meeting in June and throughout the first few months of their relationship. The evidence of record demonstrated that it was not until early August 2003 that Ms. Johnson became aware of Mr. Straubel's criminal past. Sergeant Gaythel Siplin, Ms. Johnson's co-worker, testified that she was invited to Ms. Johnson's residence for a party where she was introduced to Mr. Straubel by Ms. Johnson. Sergeant Siplin, throughout the course of the evening, correctly assumed that Ms. Johnson and Mr. Straubel were seemingly truly romantically involved. From her apparent concern and her 20 plus years as a correctional officer with experiences of potential problems female correctional officers may encounter when involved with males of unknown background, Sergeant Siplin inquired if Ms. Johnson had conducted a background check on Mr. Straubel, to include AIDS testing, credit check, and criminal background check. The answer given, as recalled by Sergeant Siplin, was negative. On another occasion, unidentified in the record but believed by the witness to have been during the month of July 2003, Sergeant Siplin testified that she again advised Ms. Johnson to "check out" Mr. Straubel; meaning do a medical, credit, and criminal background check because in her mind "Mr. Straubel was too good to be true . . . like he fell from heaven." Sergeant Siplin testified that Ms. Johnson told her on or about the first of August that "Bruce" was involved in construction and building houses and that he was involved in a situation where he was charged with false imprisonment. Sergeant Siplin knew for a fact that false imprisonment is a violent offense, and she told Ms. Johnson to check into Mr. Straubel a little bit further. Ms. Johnson was not certified to make inquiries through use of the Department of Law Enforcement's NCIC computer connection to ascertain the identity of a person with a felony conviction. According to Sergeant Williams, information about Mr. Straubel was available to Ms. Johnson through the internet by connecting to the Department of Correction's website. Sergeant Siplin related her "concerns about Ms. Johnson's relationship with Mr. Straubel" to other members of the Sheriff's Department. This "concern" founded its way into the Internal Affairs (IA) Office during August 2003. During a conversation between Lieutenant Smalls and an unnamed probation officer, the lieutenant was told that "one probationer [unnamed] was seeing a fellow employee." On or about August 19, 2003, Lieutenant Smalls met with and informed Captain Williams of the information taken from an unidentified probation officer. Captain Williams checked and affirmed that Mr. Straubel was a convicted felon. The IA investigation team, consisting of Major Potts, Captain Williams, Captain Smith, Lieutenant Smalls, and Carolyn Smith, summoned Ms. Johnson into the IA office and asked whether she knew Mr. Straubel was a convicted felon, to which Ms. Johnson answered "No." Not withstanding Ms. Johnson's denial of "knowledge that Mr. Straubel was a convicted felon," she was told by a [unnamed] superior officer of the Sheriff's Department to "cease and desist her relationship or any other contact with Mr. Straubel because of his criminal history." Ms. Johnson gave undisputed testimony that during her interview, her superior officer told her, "[I]f you had married him all of this would not be in play, you should have married him." Ms. Johnson complied with the "cease and desist her relationship or any other contact with Mr. Straubel" order of her superior officer from August 19, 2003, until sometime beginning in late October or early November 2003. Ms. Johnson gave undisputed testimony that she paid for Mr. Straubel to move into another living facility, establishing separate residence. She deposited money into his bank account and made a valid effort to "discontinue seeing Mr. Straubel." However, her efforts failed, and she first began calling Mr. Straubel; the repeated calls led to meetings outside her home; the meetings outside her home led to her going to his motel for overnight visits; the overnight motel visits led to Mr. Straubel coming over and spending nights at her home. Sergeant William Diamond testified that on or about November 14, 2003, Mr. Straubel called IA and asked to meet and did meet with IA members on or about November 17, 2003. According to Sergeant Diamond, during the meeting, Mr. Straubel acknowledged that he and Ms. Johnson were still "having an affair." Although available, Mr. Straubel did not testify. Because IA got its information from a probation officer, and, thereafter, the probationer presumably called IA and volunteered to meet with IA, the logical and most reasonable assumption is that the convicted felon, Mr. Straubel, was prompted by his probation officer to contact IA. However, the Commission chose not to call Mr. Straubel to testify. Therefore, testimony of Sergeant Diamond, purporting to be "statements made by Mr. Straubel to IA on or about November 17, 2003," which are hearsay upon hearsay statements, is insufficient to establish the truth of the matter asserted therein, is insufficient to establish the truth of the allegations sought to be established, and is, therefore, rejected by the undersigned. On November 24, 2003, Ms. Johnson was called in by IA and questioned regarding her knowledge of Mr. Straubel and his criminal history and her relationship with him. There was testimony regarding "dates phone calls were made to and from Respondent's phone"; however, there is no written evidence of record of the alleged phone calls or the dates they were made, if made. There was testimony regarding some questions asked of Ms. Johnson by the IA team members regarding motel rental payments and bank deposits. Again, there is no written evidence of record of the motel rental payment, or bank deposit slips, etc., that was produced by Petitioner. Accordingly, the testimony regarding or relating to documentation not of record is insufficient alone to establish a firm belief as to the truth of the matter sought to be established. Ms. Johnson never denied not seeing Mr. Straubel. When questioned whether she had "seen Mr. Straubel" after the August 19, 2003, order to cease and desist her relationship with Mr. Straubel, Ms. Johnson answered "no" but continued her answer to explained her temporary successful attempt to discontinue her relationship and her subsequent relapse back into the relationship with Mr. Straubel, after passage of time. During questioning by IA, Ms. Johnson admitted paying Mr. Straubel's motel bill after he moved out of her residence; she acknowledged that she was aware that in his past Mr. Straubel had gotten into "some trouble"; but she denied knowing, at that time, his trouble was a felony conviction. After IA presented her unidentified documentation that Mr. Straubel was a convicted felon, Ms. Johnson accepted IA's documentation as evidence of Ms. Straubel's criminal background. Her mere acknowledgement of the documentation presented to her by IA does not establish, as fact, she had knowledge of this information prior to IA's interrogation. Mr. Strabuel was not called to testify, and the tape recording of his earlier interview with IA was not introduced into evidence. The witnesses' recollection, made from repeated references to summation notes of tapes and other documents not in evidence, purporting to be statements Mr. Straubel voluntarily made to IA about what Mr. Straubel may or may not have told Ms. Johnson in June 2003, is hearsay upon hearsay and not acceptable as evidence to prove the truth sought to be established. For that reason this testimony is rejected in toto. The Sheriff's Department terminated Ms. Johnson's employment at the conclusion of the IA investigation, the exact month and date are not in evidence of record. After her termination by the Sheriff's Department, Ms. Johnson entered college and, as of this proceeding, had earned 46 credits toward her college degree. Subsequent to the close of this proceeding Ms. Johnson and Mr. Straubel were married on August 16, 2004, in Manatee County, Florida. The evidence of record is neither clear nor convincing that on November 24, 2003, while under oath Ms. Johnson intentionally made a false statement(s), which she did not believe to be true. The testimony of Sergeant Diamond alone, based upon summation notes purportedly taken from two tape recordings of an interview between Lieutenant Smalls and Mr. Straubel and three tape recordings purportedly containing interviews with Captain Smith, Sergeant Siplin, Deputy Eleanor Mays and Ms. Johnson, is neither clear nor convincing when transcription summaries of the tape recordings and not the tape recordings themselves where introduced into evidence. There is no evidence of record of the specific question(s) asked Ms. Johnson and no evidence of record of her specific answer to each question regarding her relationship with Mr. Straubel after August 19, 2003. The evidence of record regarding the November 24, 2003, interrogation episode, viewed most favorably, is not clear. When questioned by the IA committee and/or members regarding specific bills she allegedly paid, phone calls she allegedly made, and bank deposits she allegedly made; those phone bills, telephone logs, and bank deposit slips are not of record. Accordingly, an objective evaluation of Ms. Johnson's answer to each question regarding each specific document can not be made. Thus, Ms. Johnson's knowledge at the time each answer was given, her intention when an answer was given to a specific question, and whether her answer was true or false, can not be objectively made or reasonably inferred from the nonspecific summation testimony of Sergeant Diamond. Assuming Sergeant Diamond's entire testimony was accurate, the ambiguity created by the absence of dated documents and the absence of accurate transcripts of the several tape recordings upon which he based his testimony must be resolved in favor of Ms. Johnson. Other than the faulty memory of Sergeant Diamond, refreshed from an unauthenticated 19-page summation report, there is no substantial and specific evidence of all specific questions asked of Ms. Johnson or the specific answer to each question given under oath by Ms. Johnson. Sergeant Diamond's testimony consisted primarily of debatable expressions announced prospectively that may result in the loss of a valuable license. Viewed most favorably, the testimony of Sergeant Diamond, taken from a 19-page unauthenticated summation report of tape recordings and alleged confessions and admissions by other parties, is lacking in "specificity" and fails to produce a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Ms. Johnson's denials of essential elements in the Administrative complaint, even if unbelievable, does not prove the accusations. The Commission failed to prove by clear and convincing evidence that on or about November 24, 2003, Ms. Johnson, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Sergeant Diamond and Investigator Nancy Schoff in an official proceeding, to wit: internal investigation, in regard to a material matter as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order dismissing the Administrative Complaint against Respondent, Marvina K. Johnson. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 30th day of November, 2004.
The Issue Whether Petitioner is entitled to an exemption from employment disqualification upon clear and convincing evidence of good moral character.
Findings Of Fact On May 6, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 22, 1983, Petitioner was arrested for two counts of fraud--insufficient funds check. On June 29, 1983, Petitioner was arrested for a probation violation. On July 15, 1983, Petitioner was arrested for obtaining property in return for a worthless check. On June 28, 1985, Petitioner was arrested for fraud--insufficient funds check. On May 14, 1990, Petitioner was arrested for fraud--insufficient funds check. Arrests have no significance for statutory disqualification purposes. On September 6, 1983, Petitioner pled guilty to three counts of passing worthless checks. Adjudication of guilt was withheld. He was ordered to pay $150.00 in court costs. (Case #83-1051-CF-A). On August 2, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a worthless check. Adjudication of guilt and imposition of sentence were withheld. Petitioner was ordered to pay court costs in the amount of $147.50. (Case #83-395-CF). On May 25, 1983, Petitioner entered a plea of nolo contendere to the charge of obtaining property in return for a worthless check. He was sentenced to 30 days of county probation and ordered to pay $35.00 in court costs. (Case #83-569). Petitioner entered a plea of guilty to the charge of obtaining property in return for a worthless check (a third degree felony), on June 28, 1985. Petitioner was adjudicated guilty, and sentenced to two years' imprisonment (Department of Corrections), to be followed by one year of probation. He was also ordered to pay restitution in the amount of $102.93. None of the foregoing pleas or convictions were, or are, statutorily disqualifying offenses, but at hearing Petitioner offered the incredible explanation for them that his checkbook had been stolen by drug-affected relatives who actually wrote the worthless checks. He offered no explanation why he had pled guilty to crime(s) he claimed not to have committed. In the juvenile justice system, the Alachua Regional Juvenile Detention Center (ARJDC) is the equivalent of a county jail in the adult system. Juveniles charged with delinquent acts or crimes or for whom there is sufficient probable cause to warrant their arrest and detention are housed there for a minimum of 21 days, during which time they receive a preliminary hearing and/or commitment hearing. Petitioner claimed to have been employed in this facility from October 1985 to October 1997. How it could be possible for Petitioner to have been employed at ARJDC in October 1985, when he had been sentenced in June 1985, to two years' imprisonment was never explained, but his testimony to this effect was not refuted. Also, DJJ stipulated that ARJDC had employed Petitioner from October 1985 to October 1997, and there was evidence from several witnesses that Petitioner had worked at ARJDC while the facility was administered by DJJ, after 1995. In October 1985, ARJDC was administered by the Department of Health and Rehabilitative Services (HRS), which was/is a social service agency. Sometime before October 1997, when Petitioner resigned, ARJDC began to be administered by DJJ. DJJ is a criminal justice agency created in 1994. DJJ views its mission as "reducing juvenile crime." Neither HRS nor DJJ is a law enforcement agency or a correctional agency. While employed at ARJDC, Petitioner was, in sequential order, an OPS Transporter, OPS Detention Care Worker, and a full-time, career service Detention Care Worker I. On July 12, 1995, while he was employed in career service by DJJ at ARJDC, Petitioner was arrested for "domestic battery." The circumstances of the domestic battery of July 12, 1995, are fairly classic. The woman Petitioner was then living with, LeTeju Lane, had placed several phone calls to Petitioner at his workplace. When he returned from transporting juveniles, Petitioner only got word that LeTeju had called and left no specific messages. He got permission to go home early. Petitioner found a strange car in the driveway of the home he shared with LeTeju and then listened at the back door. Having heard sounds of "sexual commotion" inside, Petitioner went to the front door, kicked it in, and observed a man having sex with LeTeju. A fight ensued between the two men when Petitioner asked the man to "get off" LeTeju. This record is silent as to any harm done by Petitioner to either LeTeju or the male interloper. On September 11, 1995, Petitioner pled nolo contendere to the offense of "domestic battery," no statute specified. Based on the statutory scheme and the documentary evidence, it appears that Petitioner pled to a first degree misdemeanor.1/ Adjudication of guilt was withheld, and Petitioner was placed on non-reporting probation for one year. Court costs were waived, but on October 16, 1995, Petitioner was ordered to pay $100.00 in restitution to LaTeju. This money was for the repair of the door Petitioner had kicked in and damaged during the domestic battery incident. Petitioner testified that he reported the circumstances of the domestic battery to his immediate DJJ supervisors even before he was released from the initial arrest and that he kept them advised of the progress of his case; that ultimately they told him that if he were not convicted of a felony, he could keep working for DJJ; and that they allowed him to keep working in his position of special trust at ARJDC until he voluntarily resigned two years later. Mr. Turner, DJJ's current IG, has been with DJJ since 1994 but only became IG sometime in 1996. He testified that in 1995, Petitioner's immediate supervisors had a duty to report the domestic battery offense to the IG's office for investigation re disqualification exemption, and they did not. Mr. Turner inferred from this information that Petitioner actually never told his superiors about the domestic battery. Petitioner continued to work for DJJ at ARJDC until October 1997, when he voluntarily resigned due to orthopedic problems with his knee. Three professional care witnesses who had worked with Petitioner at ARJDC testified. All three described Petitioner as caring, responsible, honest, effective, and the type of person who worked well with juveniles. A supervisor noted that Petitioner was truthful about his paperwork; had willingly worked overtime; and, on occasion, had voluntarily worked without pay when OPS funds ran out. None of these witnesses knew about Petitioner's criminal record. Petitioner married LaTeju Lane about three months after the domestic violence event in 1995. Thus far, it has been a successful marriage, producing two children. On November 16, 1998, the Circuit Court in and for Alachua County granted Petitioner full custody of two of his children from a prior marriage. Petitioner and LeTeju have successfully integrated these children into their household. LaTeju's child by a prior mate also resides with them. Observers describe Petitioner as a concerned and loving father and describe all the children as "well-mannered." Petitioner has three other children by his first wife. Petitioner supports all of his minor children. LaTeju described Petitioner's behavior toward her ever since their marriage as "lovely." She further described him as being nonviolent, self-controlled, and good with the children. Petitioner described himself currently as a self- controlled, civic-minded, hard-working church-going professional. Petitioner is currently employed as a lieutenant- supervisor of security guards for the Barkley Security Agency, working at Gainesville Regional Utilities. Prior to that, Petitioner worked in mortuary science at a funeral home. On February 24, 2000, Petitioner received a certificate of recognition from the Alachua County School Board for preventing a middle school student from getting on a school bus armed with a snub-nosed pistol. On other occasions, Petitioner has been publicly commended for reporting four escaped juveniles to the Putnam County Sheriff's Department and for summoning authorities to intercept a three-year-old child who had wandered onto the green spaces of I-75. On November 6, 2000, Petitioner completed the course for certification as a Class D security officer with a score of 97 out of a possible 100 points. For approximately three years, Petitioner has been qualified as a "documented source" by the Florida Department of Law Enforcement. This means that his criminal background has been checked for anything that might discourage law enforcement officials from using him for intelligence work. Even so, law enforcement agencies frequently employ minor criminals, paid informants, and potential co-defendants for the same or similar services as Petitioner performs for them. According to Kenneth Moore, Special Agent of the Florida Department of Law Enforcement; Carnell Grayer, retired Lieutenant of the Palatka Police Department; Clovis Watson, Assistant Chief of Police of Alachua, Florida; and Robert Jernigan, Chief of Police of Alachua, Florida, Petitioner has a history spanning approximately ten years of intermittent paid civilian "intelligence work" for various police departments and sheriffs' offices. In each instance, he has done whatever was asked of him in a timely manner, and all the information he has provided has checked out as true. He regularly provides information which results in arrests and clears cases. Each officer testified favorably about Petitioner's intelligence, truthfulness, and reliability. Each testified that Petitioner was "professional" and able to control his emotions and remain non-violent under stress, even when his own children were at risk. Most of the law enforcement witnesses were unaware of Petitioner's criminal record. Some were aware of it. When made aware of his criminal record, most law enforcement witnesses felt that neither Petitioner's worthless check history nor the domestic violence offense would affect their high opinion of Petitioner, but that a false statement under oath probably would prevent their trusting him. In 1999, Petitioner submitted job applications for caretaker positions with Eckerd Youth Alternatives and Marion Regional Juvenile Detention Center, and submitted an Affidavit of Good Moral Character. Both potential employers submitted background screening requests on Petitioner to DJJ's BSU. Petitioner claimed that he had told the DJJ employees who had accepted his 1999 employment applications and affidavit all about his past criminal record and offered to provide further information, and that they had told him to turn in the applications and affidavit described below and wait to see what BSU said. Without corroboration, this assertion does not excuse Petitioner from making the disclosures required by the written instructions on the affidavit and applications. The State of Florida employment application which Petitioner signed on September 17, 1999, and submitted to Marion Regional Juvenile Detention Center (R-12), indicated that Petitioner had been a "state correctional officer" with DJJ from 1985 to 1997. This representation of being a "correctional officer" is a technical impossibility, since neither DJJ nor its predecessor agency HRS operated/operates correctional facilities. (See Finding of Fact 9) Petitioner admitted under cross-examination that he had been a Detention Care Worker I when he resigned from DJJ in 1997. He explained his answer on the 1999 job application as being the result of information he had received from his former DJJ superiors while he was still working for DJJ. Petitioner also stated on the September 17, 1999, application that he had been a "Communication Officer I" with the Clay County Sheriff's Office from September 1983 to April 1984. He did, in fact, hold that position, which constituted being a dispatcher. On the job application, Petitioner also checked "yes" to the question, "Are you a current or former law enforcement officer, other employee or spouse or child of one who is exempt from public records disclosure under Section 119.07 (3)(k), Florida Statutes?" The application form explains "other employee" to include, among others, correctional officers. It does not list police dispatchers. It then refers the applicant to the named statute for further explanation. Petitioner testified that he knew that to be a "law enforcement officer," one had to be a "certified police officer," which he had never been. Petitioner testified that he had checked the "yes" for exemption from public records requests on his application because when he was a law enforcement dispatcher and when he worked for DJJ, his superiors had told him this was a way to keep the criminal element from locating his home to hurt him or his family. A section of the September 17, 1999, job application required that Petitioner reveal convictions, nolo contendere or guilty pleas, and adjudications withheld of any felonies or first degree misdemeanors. Petitioner only admitted to "worthless check in Clay County, on July 14, 1983." This date did not match any of his worthless check pleas, convictions, or adjudications withheld and gave DJJ the impression that Petitioner was admitting to only one worthless check charge. Petitioner also did not disclose his plea of nolo contendere or that adjudication had been withheld on the 1995 domestic battery charge, a first degree misdemeanor. The job application, which Petitioner signed, authorized a search of his background and clearly stated that he was aware that any omissions might disqualify him from consideration for the employment position applied-for. In conjunction with his applications for employment and his background screening packages, Petitioner completed and signed an Affidavit of Good Moral Character, dated and notarized on September 20, 1999 (R-3), in which he swore that his criminal record did not contain any disqualifying offenses. That affidavit did not require him to list his worthless bank check charges or convictions as disqualifying offenses, but it did specifically list as a disqualifying offense, "741--relating to domestic violence as defined in Sections 741.28 and 741.30 (any crime of violence against a family/household member, including assault and battery)." Petitioner's explanations of his failure to disclose the domestic battery on the affidavit were that he believed the inquiries thereon only applied to his good character after 1995; he did not read the affidavit carefully; and he assumed the affidavit was the same as the one he had signed 14 years previously. None of these explanations is worthy of belief, especially since he ultimately admitted that the old affidavit and the 1999 one did not look the same. Petitioner's assertion that he did not think he was required to disclose the domestic battery at all because he believed that it would not count against him since his former DJJ superiors had allowed him to work for two years after it occurred is not corroborated, but is credible within the confines described in the following Conclusions of Law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001.
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
The Issue The issue for determination is whether Respondent committed violations of provision of Chapter 493, Florida Statutes, sufficient to justify the imposition of disciplinary action against Respondent's Class "A" Private Investigative Agency License; his Class "C" Private Investigator License; his Class "D" Security Officer License; his Class "G" Statewide Firearm License; and his Class "M" Private Investigative/Security Agency Manager License.
Findings Of Fact The Department of State hereby adopts and incorporates herein by reference the Findings of Fact and Conclusions of Law in the Recommended Order. WHEREFORE, based upon the foregoing, it is ORDERED that Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93- 10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93-01 133; effective May 24,1993, and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993, are hereby REVOKED. It is further ORDERED based on a complete review of the record and in accordance with the Hearing Officer's Conclusion of Law Number 27 and the Hearing Officer's finding of aggravating circumstances pursuant to Rule 1 C-3. 113(5), Florida Administrative Code, that as to Count III of the Administrative Complaint, Respondent be and is hereby FINED $700.00 pursuant to Rule 1C-3.113(2)(q), Florida Administrative Code. Payment of the administrative fine shall be by cashier's check or money order payable to the Department of Stated Division of Licensing within thirty (30) days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of allegations contained in Counts I, II and III of the Amended Administrative Complaint, and it is FURTHER RECOMMENDED that such final order revoke Respondent's Class "A" Private Investigative Agency License, Number A93-00352, effective October 11, 1993; his Class "C" Private Investigator License, Number C93-00189, effective March 8, 1993; his Class "D" Security Officer License, Number D93-10584, effective July 15, 1993; his Class "G" Statewide Firearm License, Number G93- 01133; and his Class "M" Private Investigative/Security Agency Manager License, Number M93-00074, effective July 15, 1993. DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 26th day of April, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-12. Accepted in substance, though not verbatim. 13. Incorporated by reference. 14.-17. Accepted in substance. 18.-19. Incorporated by reference. 20.-23. Rejected, unnecessary to result. 24.-38. Accepted in substance, though not verbatim. 39. Rejected, unnecessary to result. 40.-42. Incorporated by reference. Respondent's Proposed Findings 1. Accepted in substance. 2.-4. Rejected, argument. 5. Rejected, Class C license was effective in March. 6.-10. Rejected, unnecessary to result reached. 11. Incorporated by reference. 12.-15. Unnecessary to result, rejected. Rejected, hearsay. Rejected, not supported by the weight of the evidence. Accepted. Accepted. 20.-26. Rejected, subordinate to HO findings. 27. Rejected, credibility. 28.-29. Accepted. 30.-31. Rejected, credibility, not supported by weight of the evidence. 32.-38. Rejected, relevance. 39. Accepted in substance. 40.-41. Rejected, credibility. 42. Accepted in substance. 43.-46. Rejected, subordinate to HO findings. 47.-48. Accepted in substance. Rejected, subordinate, credibility. Rejected, credibility. 51.-52. Rejected, subordinate. 53.-54. Rejected, relevance, credibility. Rejected, subordinate, credibility. Rejected, subordinate to HO findings. Rejected, subordinate, relevance, credibility. 58.-59. Rejected, credibility, weight of the evidence. 60.-62. Rejected, relevance, subordinate to HO findings. Rejected, credibility. Rejected, weight of the evidence. Incorporated by reference. 66.-68. Rejected, subordinate to HO findings. 70.-77. Rejected, subordinate, argumentative, legal conclusions. COPIES FURNISHED: Douglas D. Sunshine, Esquire Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Theodore E. Mack, Esquire Cobb, Cole and Bell 131 North Gadsden Street Tallahassee, Florida 32301 Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
