The Issue Whether Respondent was the subject of an unlawful discrimination action as defined in Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. She was certified as a corrections officer in March 1991. In November 1995, Petitioner was employed by Respondent, Department of Corrections, at Taylor Corrections Institution in Perry, Florida, as a correctional officer with the rank of sergeant. Prior to her employment at Taylor Corrections Institution she had been a corrections officer at a correctional facility in Jefferson County. Petitioner did not have employment problems while working at the Jefferson County facility. Petitioner's first year at the Taylor County correctional facility was "O.K." However, Petitioner was not well liked among her fellow officers. Between June through October 1996, Petitioner was the subject of several complaints from her fellow officers. These separate complaints were: On June 12 or 13, 1996, King cursed at an entire dormitory of inmates. On June 19 King was assigned to assist another officer in conducting a recount of inmates. She failed to assist the officer in conducting the recount. On July 24, 1996, King was assigned to escort the swill truck (a food truck) by the control room sergeant. She refused to accept the assignment and cursed at the control room sergeant. A few days later, she confronted another officer in a hostile and threatening manner because the officer had submitted an incident report concerning King's conduct in cursing at the control room sergeant. On October 9, another sergeant asked King to sign a typed incident report regarding King's loss of her state-issued handcuff case. King initially refused to sign the report. Shortly thereafter, she tore up the report in the presence of an inmate because she was displeased with certain comments in the report. On October 28, King cursed at a coworker. Id. PERC Final Order dated October 8, 1997. In October 1996, Petitioner filed several internal discrimination complaints against the agency generally opposing unfair employment practices. The exact nature of these complaints was not established by the evidence. On December 13, 1996, Petitioner received a notice of disciplinary charges being brought against her based on the earlier-filed employee complaints. The notice lists the charges as follows: Multiple charges are being brought against you stemming from several investigations. In the first case, you are being charged with malicious use of profane or abusive language toward inmates, visitors, or persons under supervision, use of verbal abuse of an inmate, conduct unbecoming a public employee, and willful violation of state statute, rule, directive, or policy statement. Specifically on June 25, 1996, an anonymous request was received by the Superintendent's Office alleging that you cursed the entire dormitory of inmates on June 13, 1996. It was also alleged that you had been gambling and would not pay off your debts. This prompted an investigation into these allegations. Several witnesses including an inmate verified the above allegations. The basis for these charges is contained in the Institutional Investigation Report #96-044, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33- 4.001(4)(a), 33-4.002(4)(9), and 33- 4.003(6)(20)(22)(24), F.A.C., copies attached and made a part hereof. In the second case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming a public employee, unwilling to follow lawful orders or perform officially designated duties, interference with an employee, failure to follow oral or written instructions, witness tampering during an investigation, and retaliation. Specifically on July 24, 1996, Sergeant J. Pickles reported that while assigned as Control Room Supervisor, he advised you via radio that he needed an escort for the swill truck. You responded by telephone and stated "Why are you calling me? I'm not escorting that fucking swill truck. I'm busy in the Caustic Room. Get someone else to do that shit." Officer V. Aman submitted an incident report verifying the telephone conversation since it was the dormitory in which she was assigned to that you came to use the telephone. On August 1, 1996, Officer Aman also stated that you made threats toward her in retaliation for submitting her report, in which you admitted to confronting this officer. The basis for these charges is contained in Institutional Investigation Report #96-052, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33- 4.002(4)(11)(17), 33-4.003(22)(24)(32), F.A.C., and Sections 914.22, 914.23, Florida Statutes, copies attached and made a part hereof. In the third case, you are being charged with willful violation of state statute, rule, directive, or policy statement, conduct unbecoming, unwillingness to perform officially designated duties, substandard quality of work, negligence, and failure to follow oral or written instructions. Specifically, on June 19, 1996, a recount was ordered and you were informed by the control room that your dormitory officer needed assistance in the recount. The officer stated that he waited approximately ten (10) minutes for your arrival and proceeded to recount without assistance. He then submitted an report as to the incident. You then submitted an incident report concurring with the officer with the exception that you observed the recount from the Officer's Station. The basis for these charges can be found more specifically contained in the Institutional Investigation #96-058, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(4)(11) and 33-4.003(10)(13)(22)(24)(32), F.A.C., Institutional Post Orders 17.02(j), 06.03(B)(1b)(1c)(1f)(lg)(2a), and (D)(4), and Institutional Operating Procedures 3.03.3(C)(5)(11e), copies attached and made a part hereof. In the fourth case, you are being charged with conduct unbecoming a public employee, willful violation of state statute, rule, directive, or policy statement, and destruction or abuse of DC property or equipment. Specifically on October 9, 1996, you submitted an Incident Report for losing your state issued handcuff case. On October 13, 1996, after being typed, Sergeant Chad Dees gave the Incident Report to you to be signed. Upon receiving the report, you allegedly stated "I will show you what I will do with this," then tore the report up and walked away. You admitted to tearing up the report because of the comments written by Captain Simons, but denied making the comment alleged by Sergeant Dees. Officer Tammy Alvarez witnessed you tear up the report, but denied hearing any statements made by you. The basis for these charges is contained in the Investigative Report #96-23008, a copy attached and made a part hereof. This conduct violates Department of Corrections' Rules 33-4.001(4)(a), 33-4.002(25), and 33- 4.003(22)(24)(27), F.A.C., copies attached and made a part hereof. All of these charges pre-date Petitioner's internal complaints. On January 23, 1997, a predetermination conference was held on the above charges. The evidence did not demonstrate that the employee charges or the disciplinary action were retaliatory in nature or based in discrimination. Moreover, the factual basis of the charges was upheld in the PERC Final Order. As referenced in the letter, Petitioner was the subject of several investigations conducted by the Inspector General's Office of the Department of Corrections. The role of the Inspector General was to gather the facts and evidence involved in a complaint. The Inspector General does not make any recommendations as to discipline or determine if a rule or statutory violation has occurred. Raleigh Sistruck, an Inspector with the Inspector General's office conducted some of the investigations of Petitioner. He did not personally know Petitioner. There was no evidence that he treated Petitioner differently than he did any other investigatory subject. Nor did Inspector Sistruck engage in any conspiracy or act alone to fabricate evidence against Petitioner or elicit false testimony from witnesses. Indeed, the only evidence presented in this case, is that Inspector Sistrunk followed standard investigatory procedures in investigating the complaints against Petitioner. In January, 1998, Petitioner was accused of soliciting an inmate and another correctional officer to cause harm to another inmate at the facility. The Inspector General's office investigated that accusation. Again there was no evidence that the inspectors engaged in any conspiracy to falsify or fabricate evidence. Normal investigatory procedures were followed. Based on the various complaints and the findings set forth in various Inspector General investigations, Mr. Drake decided to terminate Petitioner. Petitioner received a letter of extraordinary dismissal on February 7, 1997. The dismissal letter dismisses Petitioner for: This dismissal is the result of you being charged with willfully engaging in conduct which violates state statutes and Agency rules; conduct unbecoming a public employee; failure to conduct yourself in a manner consistent with the welfare of inmates; soliciting, bartering, dealing, trading with or accepting a gift or other compensation from an inmate(s); willfully treating an inmate in a cruel or inhuman manner; threatening or interfering with other employees while on duty; failure to maintain a professional relationship with inmates; giving false testimony; and interfering with an inmate. Specifically, on or about January 10, 1997, you solicited the assistance of inmate Tony Jackson, DC#724515 and Correctional Officer Jacqualyn Jackson-Beasley to cause harm to inmate Mike Doty, DC#725094. As a result of your actions and requests, Officer Jackson- Beasley, inmate Jackson, inmate Mark Smith, DC#724887, inmate Alberto Matta, DC#191523 and inmate Thomas Carrillo, DC#195319, conspired and did plant a homemade knife, with an approximate 14 inch blade, in inmate Doty's cell in an effort to set him up. When inmates Carrillo and Matta entered F- Dorm with the knife, Officer Jackson-Beasley signaled then with her fingers indicating inmate Doty's cell number. She also acted as a cover while the inmates planted the knife in inmate Doty's cell. Once the knife was planted, you and Officer Jackson-Beasley had a telephone discussion during which you instructed her to call Sergeant Gerald Miller and have inmate Doty's cell searched. Once Officer Jackson-Beasley reported the information to Sergeant Miller, a search of Doty's cell was made and the knife was recovered. Sergeant Miller than notified Captain William F. Buchtmann. After questioning by Captain Buchtmann, inmates Carrillo and Mata, both admitted their participation in placing the knife in inmate Doty's pillow and stated they were contacted by inmates Jackson and Smith for assistance. Carrillo was told by Jackson and Smith that it was you who wanted inmate Doty taken care of and they gave inmate Carrillo the impression that if he took care of inmate Doty, he would be paid $50.00 and be given an undisclosed amount of marijuana for his assistance. The following day, January 11, 1997, you stated to inmate Jackson words to the effect, "They locked up inmate Smith" and "That motherfucker talked" (referring to inmate Matta) You also stated to inmate Jackson words to the effect, "It's not cool for me to be seen talking to you." On or about January 17, 1997, Officer Beverly Pratt overheard you state to an unidentified inmate, words to the effect, "Something needs to be done with Doty." On that same date, inmate Willie Jackson, DC#041463, overheard you state to an unidentified inmate, words to the effect, "I am going to get Officer Jackson-Beasley and Sergeant Miller." When questioned under oath, on January 24, 1997, you gave false testimony when you denied all allegations. Additionally, the letter dismisses Petitioner for the earlier disciplinary charges discussed at the predetermination conference in December. Mr. Drake, Superintendent of Taylor Correctional Institute at the time, testified that Petitioner's termination was based on his belief that she had in fact committed the aforementioned rule and statutory violations. He stated that the termination was not based on Petitioner's race or sex or any other of her characteristics; rather, the termination was based on rule and statute violations. There was no evidence which demonstrated Mr. Drake engaged in any conspiracy to concoct evidence against Petitioner or to falsely accuse her. Angela Ratliff, Personnel Supervisor at the time, testified that she did not have any conversation with Petitioner wherein she told her that the Department, her supervisors or coworkers were "out to get her" or words to similar effect. Additionally, Ms. Ratliff does not recall having any conversations with prospective employers for Petitioner. The Respondent's policy is to recite to a prospective employer information contained in the employee's personnel file. The Department does not offer opinions or recommendations about an employee. Moreover, most of the information in the personnel file is considered a public record and must be released to any person or entity requesting the information. In any event, other than broad general statements about seeking employment and what she was told by others who did not testify at the hearing, there was no evidence regarding any specific prospective employer or the information, if any, the prospective employer received from the Department. There is no doubt that Petitioner feels very strongly she was discriminated against. The problem with Petitioner's case is a total lack of evidence to support her allegations. Throughout the hearing she made allegations of discrimination. However, no evidence apart from her allegations of which she had no personal knowledge, was offered. For instance, the alleged paper trail created against her or documents she claimed were changed were not introduced into evidence. No witness was called who wrote or filed such document or statement was called to testify about any such document or statement or any alleged change made to the document or statement. The paper noises or pauses of tape-recorded interviews of witnesses taken during the Inspector General's investigation did not support Petitioner's claim that the witnesses were prompted or told what to say. Such noises or pauses sounded exactly like pages being turned in a notebook when one page is full and a new page is needed to continue taking notes. The pauses sounded like a note taker pausing the witnesses' statement in order to catch up the notes to the witnesses' statement. Given these critical lapses in evidence and the earlier PERC Final Order, the Petition for Relief should be dismissed.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 May, 2001. COPIES FURNISHED: Anita King 108 Alice Street Perry, Florida 32347 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue to be resolved in this proceeding concern whether, because of a prior regulatory and criminal history, the Petitioner is entitled to licensure in Florida as a nonresident life, health and variable annuity agent.
Findings Of Fact The Petitioner, Eugene P. Kent, at times pertinent hereto was a licensed insurance agent in South Dakota. He was apparently an agent or broker for the Independent Community Banker's Association of South Dakota and engaged in the insurance business with regard to the various group benefits coverage for that association. Apparently in 1995, he become involved in a dispute between the Independent Community Banker's Association of South Dakota and United of Omaha Life Insurance Company. This dispute, the exact nature of which is not of record in this case, resulted in the Petitioner being charged with mail fraud by the United States Attorney for the District of South Dakota. He was prosecuted for mail fraud and ultimately was convicted by jury verdict on or shortly after October 26, 1996. He was sentenced to two years' imprisonment. The Petitioner believed that evidence existed in the home office of United of Omaha Life Insurance Company, which would exonerate him, and that his counsel during the criminal prosecution had, for unknown reasons, failed to subpoena and obtain such evidence for use in his criminal trial. He obtained new counsel who was successful in obtaining the evidence in question, which indeed proved to be exculpatory. It resulted in the presiding judge in the criminal case vacating the order of conviction, resulting in the Petitioner's release from incarceration. Because of his conviction, the insurance departments of South Dakota, as well as North Dakota and Nebraska, had revoked his insurance licenses, based upon the criminal conviction. On October 26, 1996, during the progress of the criminal trial referenced above, the Petitioner and his wife became concerned that she would not have funds to pay for his counsel, to operate her home and the business and to pay for her son's alcohol rehabilitation expenses if the jury returned a guilty verdict resulting in his incarceration. Consequently, on that day, the Petitioner made a withdrawal from his business account, drawn upon the Kent Insurance, Inc., account in the amount of $9,900, by writing a check on that account. On the same day, the Petitioner went to a different branch of the same bank and negotiated a second check on this same account also made payable to him, again, in the amount of $9,900, drawn upon the Kent Insurance, Inc., business account. The bank officer upon the occasion of the second withdrawal that same day told him that a currency transaction report would have to be filed. The Petitioner readily agreed to file the report and assisted the bank officer in completing and executing the transaction report. Thereafter, the United States Attorney secured an indictment of the Petitioner, during his incarceration for the earlier criminal conviction, before it was vacated by the trial judge. He prosecuted the Petitioner for "attempting to cause a financial institution not to file a report." During the pendency of this second criminal proceeding, the Petitioner remained incarcerated from the earlier proceeding, which was later vacated. Because of this, his counsel in the second criminal proceeding advised him to plead guilty to the second charge in return for a light penalty, because his counsel believed that if he attempted to litigate the second criminal matter to trial, he would have difficulty convincing a jury of his innocence because he was already incarcerated on the earlier mail fraud charge. Consequently, on May 20, 1998, the Petitioner pled guilty to attempting to cause a financial institution not to file a report. He was sentenced to five months' imprisonment as a result of that plea, which ran concurrently with the sentence imposed on February 24, 1997, regarding the mail fraud charge. After release, he was sentenced to supervised release for a period of approximately two years. The preponderant evidence in this proceeding shows that the Petitioner did not attempt to defraud the federal government or to prevent the bank involved from filing the report. Upon being informed of the requirement of filing the report, he freely consented and helped execute the report form involved at his bank. The funds he withdrew with the two checks were his funds from an account over which he had ownership and signatory authority. There is no evidence that the funds in the account withdrawn by the Petitioner had been obtained through an criminal alleged enterprise or that the Petitioner contemplated using them for such a purpose. The post-conviction evidence that was obtained by the Petitioner and his counsel resulted in the judge vacating the first conviction for mail fraud. This new evidence was also the basis for the South Dakota Insurance Regulatory Agency reinstating his licensure. Ultimately, the other states which had revoked his licensure reinstated his licenses. The Petitioner is now similarly licensed in 17 or 18 states. He applied for licensure as a non-resident life, health, and variable annuity agent in Florida and that application was denied by the Department due to his criminal history and the prior administrative actions against his licensure in the other states. That denial resulted in this proceeding. The other states which have since either reinstated his licensure or licensed him did so with knowledge, as reported by the Petitioner, of his prior criminal and administrative proceedings. The Department has a rule listing various crimes (in Classes A, B, and C) such that, if a petitioner has been so convicted, then that petitioner cannot be licensed for periods of times stated in that rule. Class A crimes listed in that rule carry the longest period of time during which licensure is prohibited with a waiting period extending as much as 15 years. The Division of Licensing of the Department decided that the crime involved herein was a "Class A crime." The rule allows the Department to analogize the crime of which a petitioner or applicant has been convicted with one of the crimes listed in this rule if the crime, of which an applicant was convicted, is not itself listed in the rule. The Division of Licensing thus decided to classify the crime of "attempting to cause a financial institution not to file a report" as analogous to "defrauding the government" or "obstruction of justice." The Petitioner was not charged with either defrauding the government or obstruction of justice and was not convicted of those crimes. Although the stipulation of facts between the Petitioner and the United States Attorney, attendant to the Petitioner's plea in the second federal criminal case (Petitioner's Exhibit G), shows that the Petitioner knowingly attempted to avoid the reporting requirement imposed by Title 31 U.S.C. § 5313(a) on the bank for currency transactions of more than $10,000 in one day, there is no persuasive evidence that he did so for any illegal purpose or fraudulent intent, or intent to in any way "obstruct justice," or engage in dishonest conduct. There was no demonstrative harm to the public nor was there any "victim" of his purported crime. If the Petitioner had truly wanted to conceal the transaction or induce the bank to fail to report it, he could simply have presented the second $9,900 check on another day for cashing, or had his wife negotiate such a check on a different business day. Instead, when told by the bank employee, on presenting the second check, that a currency transaction report would have to be filed, he freely assented and assisted in the preparation of the report form; even the above-referenced stipulation of facts attendant to his criminal plea shows this. There was no requirement that a report be made until the second check was negotiated on the same day. The Petitioner's testimony in evidence, including the fact that 18 states have licensed him or re-instated his licensure since the criminal and administrative proceedings at issue herein, with knowledge of those proceedings, shows preponderantly that his crime did not "involve moral turpitude" and that he is fit and trustworthy for engagement in the practice of insurance. The crime to which he pled did not involve any significant, rational relationship or nexus to the two "analogized crimes" involving "obstruction of justice" or "defrauding the government" for purposes of the Department's rule cited below. Two affidavits, admitted as Petitioner's Exhibits J and K, as corroborative hearsay, in accordance with Section 120.57(1)(c), Florida Statutes, bear out this finding and are worthy of quotation. The first affidavit is that of attorney James L. Volling, the Petitioner's counsel for purposes of appeal and post-conviction challenge to his first conviction, and his counsel for purposes of the second criminal case. Mr. Volling practices in Minneapolis, Minnesota, and is admitted to practice by the Minnesota Supreme Court, as well as by the United States District Court for the District of Minnesota and for the District of North Dakota. He is also admitted to practice in the courts of appeal for the District of Columbia Circuit, the Eighth Circuit and the Fifth Circuit, as well as the United States Supreme Court. He testified in pertinent part as follows: Following Mr. Kent's conviction on two counts of mail fraud, I was retained to represent him for purposes of appeal and post-conviction challenge to the conviction as well as in connection with a second case brought against him. Upon reviewing the facts and the law in Mr. Kent's case, I became convinced that his conviction was defective and inappropriate. Ultimately, the trial court agreed and his petition for post-conviction relief was granted and his conviction and sentence were vacated. The government chose not to appeal that decision which I believe clearly would have been upheld by the United States Court of Appeals for the Eighth Circuit. During the pendency of post-conviction proceedings in Mr. Kent's case, the government brought a second case against Mr. Kent involving allegations of an attempt to avoid currency transaction reporting requirements. In my view, these allegations were petty at best, especially considering that the bank involved did file a currency transaction report and Mr. Kent expressly permitted them to do so. Mr. Kent was simply withdrawing his own money and there was no claim that those funds were the product of any illegal activity [or for any illegal purpose]. The government's second case was only technical in nature and, in my view, would not have been charged in any other jurisdiction with which I am familiar. Indeed, the assistant United States attorney representing the government told me that the only reason the government brought the second case was their concern that Mr. Kent's conviction in the first case would ultimately be overturned, which of course it was. With regard to the currency transaction reporting matter, Mr. Kent elected to enter a plea bargain to avoid further expense and burden, and which did not augment the punishment that had been given to him in the first case. I have no doubt that, if Mr. Kent, had not been convicted in the first case so that he would not have had that stigma at the time of the second case, he would have elected to try the currency transaction reporting case rather than to enter into a plea agreement. It was after that plea agreement, that the conviction and sentence in Mr. Kent's first case were vacated. I have known and dealt with Eugene Kent for approximately five years now. During that entire time, he has always been a man of his word. He has done exactly what he said he would do and has told me the truth in every respect. I have great respect and admiration for Mr. Kent as person and as a client. I believe he has suffered unfairly throughout this entire ordeal, but he has remained steadfast and persevered through some truly difficult times. I have been proud to serve as his legal counsel, and I would recommend him unhesitatingly to anyone in terms of employment or any business relationship. The second affidavit is by Mark F. Marshall. Mr. Marshall is now a lawyer and at times pertinent hereto has been admitted to the practice of law by the South Dakota Supreme Court. He has been in the active practice of law since 1981. At times pertinent hereto from January 1, 1996, until August 1, 2000, Mr. Marshall served as a United States Magistrate Judge for the District of South Dakota. Mr. Marshall testified pertinently as follows: From January 1, 1996 until August 1, 2000, I served as a United States Magistrate Judge for the District of South Dakota. In my capacity as a United States Magistrate Judge, I conducted the initial appearance and detention hearings in a matter styled the United States of America v. Eugene P. Kent, CR. 96-40002-01. Over the objection of the United States, I ordered Mr. Kent released on conditions. A copy of the Order Setting Conditions of Release, as well as Mr. Kent's Appearance Bond in the Amount of $100,000.00 is attached hereto as Exhibits A and B respectively. [released on a non-surety bond requiring no security.] In my capacity as a United States Magistrate Judge, I conducted a hearing on the Defendant's Motion to Dismiss in a matter styled the United States of America v. Eugene P. Kent, CR. 97-40111. [the currency transaction prosecution.] I denied the Defendant's Motion to Dismiss as I believed that an issue of fact existed as to the Defendant's intent. While I believed that it would be improper to dismiss the case because of that issue, I also know that if I had been the finder of fact I would have found the Defendant not guilty of all of charges in the indictment. Perhaps more so than any defendant who appeared before me, Mr. Kent comported himself with grace, dignity, and the utmost of integrity with regard to both criminal cases. Since being exonerated from all underlying criminal counts regarding this matter, Mr. Kent has asked me to submit an affidavit on his behalf. Initially, I was reluctant to do so not because Mr. Kent was unworthy of support, but because I was concerned about whether doing so would reflect adversely on my former judicial office. I have concluded that the interests of justice compel me to provide this affidavit on behalf of Mr. Kent. I am firmly of the belief that Mr. Kent committed no criminal acts in either of the cases venued in the United States District Court for the District of South Dakota and as such he should not bear the stigma of any criminal record. I have been a member of the South Dakota Board of Pardons and Paroles since July of 2002. During my tenure as a member of the Parole Board, I have reviewed hundreds of applications for pardons. I have reviewed all public filings in Mr. Kent's civil actions arising from his conviction as well as all filings in the criminal action itself. Based on my experiences as a Parole Board member, my knowledge of Mr. Kent individually and professionally, and as well as my knowledge of the role that pardons serve in the state and federal judicial system, I believe that Mr. Kent is an unusually worthy applicant for such extraordinary relief. It is my personal belief that Mr. Kent poses no threat to society whatsoever. Society's interests, as well as those of Mr. Kent, would be well served by granting him the relief he seeks . . . . Dated this 11th day of November, 2003.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petitioner be granted licensure. DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of September, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Eugene P. Kent 1209 West 37th Street Sioux Falls, South Dakota 57105
Findings Of Fact Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute. Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title 26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966. On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey. There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than 25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida. The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey. Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application for a Class "C" Private Investigator License. DONE and ENTERED this 21st day of April, 1992, 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 21st day of April, 1992. Copies furnished: Ronald L. Jones, Esquire Jones and Koch 1200 East Lafayette Street, Suite 108 Tallahassee, FL 32301 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary, Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
Findings Of Fact At all times relevant hereto Respondent was certified by Petitioner as a law enforcement officer and he was employed by the City of Tampa Police Department. Respondent was married to Stephanie Brown and is the father of two of her children. Marital problems arose and in June 1983 they separated. At the time, Stephanie Brown owned and operated a barbershop. Each time Respondent and his wife met they argued. At a judicial hearing Respondent was directed to pay child support to his wife. The check he gave Stephanie in the presence of the judge, Respondent tried to recover when he left the courthouse. He was quite angry when Stephanie refused to return this check to him. That same evening, which Stephanie identified as October 24, 1983, Respondent came to the barber shop shortly before closing. Respondent was very angry and demanded return of the money he had been directed to pay as child support, told Stephanie he was sick and tired of her, and did not intend to lose his job because of her complaints. At this time Stephanie was sitting behind her desk at the salon and Respondent was standing in front of the desk. During the argument Respondent tilted the desk toward Stephanie and a letter opener fell off the desk. This letter opener, which was described by Stephanie as having a metal blade approximately, eight inches long, was picked up by Respondent and waved around by him as they argued. Stephanie testified that Respondent was close enough to cut her with the letter opener and that she was afraid he would: however, no evidence was presented that Respondent made any attempt to use a letter opener as a weapon or made any specific threat to harm Stephanie with the letter opener. Ms. Jackson, a customer of Stephanie's who knew Respondent, came in from the back part of the salon and saw Respondent and Stephanie arguing, with Respondent holding the letter opener. She attempted to calm Respondent and apparently succeeded since 'Stephanie testified that after Ms. Jackson calmed Respondent down he cried and was upset. Stephanie also testified that on another occasion Respondent came in the salon shortly before closing and they again got into an argument. Although Respondent was off duty, Stephanie knew he was armed because he "always carried his pistol the course of this argument Stephanie never saw Respondent draw his pistol, have it in his hand, or even have the pistol exposed where she could have seen it. Stephanie testified that an employee' of hers, Yvette Spann, came in while she and Respondent were arguing and later told Stephanie that she had seen a gun in Respondent's hand. This hearsay testimony was corroborated no admissible evidence. The police officer who investigated the charges Stephanie had made against Respondent was the second witness called by Petitioner. This officer had no first-hand knowledge of either of the assault charges preferred against Respondent. As a result of Sergeant Wilkinson's investigation Respondent was discharged from the Tampa Police Department.
Findings Of Fact The facts stated in the Joint Stipulation of the parties to the extent set forth below are hereby adopted as findings of fact: On December 21, 1990, Petitioners, each of which is a wholly-owned subsidiary of Dean Foods Company ("Dean"), were each convicted of a one-count felony charge brought under Section 1 of the Sherman Antitrust Act. On January 7, 1992, Respondent filed and Petitioners received notices of intent to each Petitioner pursuant to Section 287.133(3)(e)1, F.S. On January 28, 1992, Petitioners, pursuant to Section 287.133(3)(e)2, F.S., filed a petition, pursuant to Section 120.57(1), F.S., requesting an order determining that it is not in the public interest for Petitioners to be placed on the State of Florida Convicted Vendor List. Petitioners' convictions arose out of an investigation initiated by the Florida Attorney General into possible bid-rigging of school milk requirements contracts in Florida by dairies and distributors. In 1988, the Attorney General filed a civil action against these dairies and distributors, including Petitioners. Section 287.133(3)(e)3.c, F.S., establishes "[t]he degree of culpability of the person or affiliate proposed to be placed on the convicted vendor list" as a factor to be considered in the decision whether to place such person or affiliate on such list. The State of Florida's complaint alleged that the bid-rigging and contract allocation scheme began at least as early as 1978. According to the State's attorneys, the illegal activities actually started as early as the 1960's in southeastern Florida (McArthur Dairy's principal market area) and the 1970's in central and southwestern Florida (T.G. Lee Foods' principal market area). Dean purchased Petitioners in 1980. According to the State's attorneys, Jack Wells and James Clark, former sales managers at McArthur Dairy and T.G. Lee Foods, respectively, participated in such conspiracies during the 1960's and 1970's and fraudulently concealed their efforts from the former owners of T.G. Lee Foods and McArthur Dairy, from Dean and from the school boards. Thus, Dean unknowingly bought into these on-going conspiracies. While the fact that Dean bought into these preexisting schemes was not a legal defense, it is relevant to the issue of culpability. This fact and Dean's early settlement offer were given favorable consideration by the State of Florida during settlement discussions. Section 287.133(3)(e)3.d, F.S., establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the convicted vendor list. Dean promptly paid on behalf of Petitioners all civil damages owed the State arising out of such activities. In a press release dated August 1, 1988, the Attorney General confirmed Dean's payment in full settlement of the charges brought by the State of Florida against Petitioners. A federal grand jury sitting in Tampa, Florida also investigated this matter. Dean and Petitioners cooperated fully with that investigation. Pursuant to plea and settlement agreements dated September 12, 1990, entered into by each of Petitioners with the United States Department of Justice, Dean and Petitioners agreed to a comprehensive settlement. Said settlement required that Petitioner plead guilty to a one-count criminal information and pay $1 million each in criminal penalties and $175,000 each in civil damages to the federal government. Such civil liabilities and criminal penalties were paid to the federal government, as reflected in a letter from the federal prosecutor to officials of the United States Defense Logistics Agency dated February 21, 1991, which letter appears as Exhibit A to the Memorandum submitted by Dean to the Defense Logistics Agency. Section 287.133(3)(e)3.e, F.S., establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. Petitioners agreed to and did cooperate fully with the State of Florida in connection with its investigation. Petitioners also cooperated fully with the federal grand jury investigation. This cooperation was confirmed in the letter from the federal prosecutor referred to above, which states: We have found McArthur & T.G. Lee and their attorneys to have been most cooperative in this matter. We believe both the companies and their attorneys have shown a high degree of responsibility by agreeing to settle this matter in an expeditious manner. The negotiated settlement with these defendants resolves all matters relating to their operations in Florida. As a final point, we believe the early agreement by these companies and their counsel to settle this matter for a substantial sum gave the incentive for other corporate defendants to come forward and also offer substantial criminal and civil settlements. Several of those cases have now been favorably concluded. Section 287.133(3)(e)3.f., F.S., establishes "[d]isassociation from any other person or affiliate convicted of the public entity crime" as a mitigating factor. Jack Wells and James Clark, the only individuals at McArthur Dairy and T.G. Lee Foods implicated in the wrongdoing that give rise to the convictions in question, were terminated. The investigations conducted by the State of Florida and the Department of Justice disclosed no involvement or knowledge on the part of any other employee of Petitioners, Dean or any of Dean's other subsidiaries, as reflected in a letter form attorneys representing the State of Florida to Dean's attorney dated June 29, 1988. Section 287.133(3)(e)3.g, F.S., establishes "[p]rior or future self- policing by the person or affiliate to prevent public entity crimes' as a mitigating factor. All of Dean's subsidiaries, including Petitioners, have an active antitrust compliance program. Section 287.133(3)(e)3.k, F.S., establishes "demonstration of good citizenship" as a mitigating factor. Petitioners have been involved in civic and philanthropic affairs throughout the years. For example, T.G. Lee Foods and McArthur Dairy have spearheaded fundraising events for Edgewood Children's Ranch, a non-sectarian foundation for the support of under-privileged and abused children. T.G. Lee Foods and McArthur Dairy have also donated milk to the Ranch for a number of years. McArthur Dairy has made substantial contributions to organizations such as the University of Miami, and Miami Dade Junior College.
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
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Fuller Warren Crews was employed until 1959 as a police officer in Jacksonville, Florida. In 1959, he was permitted to resign rather than face disciplinary charges. In 1959, Crews pled guilty in Jacksonville to damage to telephone equipment, a misdemeanor. Crews was sentenced to six months in the county jail. In 1960, Crews was found guilty of possession of tools used in committing crimes and pled guilty to simple larceny in Tifton County, Georgia. Be was sentenced to three to five years in prison in Georgia. Crews was fully pardoned for the offense of possession of tools used in committing crimes on October 6, 1975. Approximately eight to ten years ago, Crews became active within tie Nassau County Sheriff's posse helping to reorganize those police auxiliary groups. He was very dedicated and did a fine job, eventually becoming Captain of the posse. Crews applied for a position as Deputy Sheriff in Nassau County in 1976. He was interviewed by the Sheriff, who he advised of his criminal record. The Sheriff desired to hire Crews and contacted the Police Standards and Training Commission. In January, 1976, the Sheriff's Department provided the PSTC with various data on Crews. This data constituted the application for certification by the Commission, which does not have an application form. This application led to the processing of Crews' certification over the next two years. The procedures of the Department delegated to individual law enforcement agencies the task of conducting background investigations. Basic background data on Crews' convictions and former employment was provided the PSTC prior to Crews' certification on February 3, 1978 (Transcript, pages 178 and 179). In the course of processing his application, Crews appeared informally before the Commission concerning his certification on August 20, 1976. At that time questions were asked of Crews by the Commission regarding his dismissal from the Jacksonville Police Department. Crews responded that he had been discharged because of charges involving unlawful damage to private property (Transcript, pages 129, 165 and 166). There was no indication that Crews failed in any way to disclose his past record either in his application or in his statements to the Commission. Crews was denied certification because of the Commission's interpretation of Chapter 112.011, Florida Statutes, to Crews' pardon and the Federal Firearms Control Act, 18 U.S.C. 922(h) (Exhibit #2). Crews' fingerprints were taken by the Sheriff's Department and forwarded to the Florida Department of Law Enforcement (FDLE) but not to the PSTC. The FDLE forwarded Crews' fingerprints to the Federal Bureau of Investigation (FBI). The FBI sent one fingerprint card and Crews' RAP sheet back to the FDLE but not to the PSTC, and the FDLE sent the fingerprint card and RAP sheet to the Sheriff's Department. Under the PSTC's standard procedures, the Sheriff's Department sent this data to the Commission when Crews was hired, the day after his certification. The Sheriff's Department had knowledge of Crews criminal convictions and dismissal from the Jacksonville Police Department from the RAP sheet and Crews' statements to the Sheriff. On February 3, 1978, the Commission certified Crews. There was a discussion of Crews' background by the Commission, particularly his pardon, after which Crews was certified. His certification resulted from the Commission's interpretation of the law (Transcript, pages 166, 167, 182, 184, 105 and 186. See also attached minutes, Exhibit #4 and letter from Smith to Long). According to a member of the Commission at that time, Crews' certification was not a clerical error but resulted from the Commission staff's failure to follow up on data which it possessed (Transcript, pages 189 and 190) Many co-workers, the Sheriff by whom Crews is employed, neighbors and others testified regarding Crews' reputation in the community and their personal assessments of Crews' character. He is considered to be truthful, trustworthy, honest and hardworking. He has worked as a deputy sheriff since 1978 and has a reputation as a fine professional law enforcement officer respected by his co- workers and associates, many of whom testified in his behalf.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Police Standards and Training Commission toe no action to revoke the certification of Fuller Warren Crews because it lacks authority to consider any grounds for revocation which preexisted its initial final action of certification, and because the record reflects that Fuller Warren Crews has maintained good moral character. DONE and ORDERED this 18th day of November, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Administrative Law Section The Capitol Tallahassee, Florida 32301 James Corrigan, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO.: 80-921 FULLER WARREN CREWS, Respondent. /
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against Respondent are true, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility for certification of correctional officers within the State of Florida. Respondent holds Correctional Certificate No. 242571, issued to him by Petitioner. On July 16, 2005, Respondent was involved in an altercation with Chelsey Traband, the woman he lived with in Cape Coral, Florida. In the course of the altercation, items were thrown around the interior of the house, Respondent damaged a closet door and window, and clothing was thrown into the front yard. These actions, and perhaps associated noise, caused a neighbor to call the Cape Coral Police Department, and two police officers went to the scene to investigate. The officers observed bruises on Ms. Traband's left arm, a minor scratch on her right arm, and three parallel scratches on the top of her right breast, one of which was relatively deep. In a statement made to Officer Frank Antos, Ms. Traband stated that the bruises and scratches were inflicted by Respondent. At the hearing, Ms. Traband attempted to recant the statements she made to Officer Antos on July 16, 2005, claiming that he told her what to say and threatened to arrest her and take her to jail if she did not make the statements. Much of Ms. Traband's testimony was evasive and lacking in credibility. She had a motive for lying, because she still lives with Respondent and does not want him to be disciplined. Sorting Ms. Traband's credible statements from her lies, it is found that Ms. Traband started the aggression by slapping and hitting Respondent. However, at some point, Respondent straddled Ms. Traband while she was on her back on a bed, grabbed her breast and twisted it violently. Although both Respondent and Ms. Traband testified under oath at the hearing that the marks on her breast were caused when Respondent pushed Ms. Traband away from him in self defense, the testimony was not credible. It contradicts the statement Ms. Traband made on July 16, 2005, and her former statement is consistent with the marks on her breast as depicted in the photographs. On the day of the incident, Ms. Traband told Sergeant Allan Kolak that Respondent had been smoking marijuana earlier that day, and she had thrown the pipe he had used to smoke the marijuana into the field behind the house. She showed Officer Antos where to find the pipe, and he found a small wooden pipe. Sergeant Kolak testified that the pipe was the kind used to smoke marijuana, it was not the kind of pipe used to smoke tobacco, and it had a smell that he knows from his training and experience is the smell of burned marijuana. After reading Respondent his Miranda rights, Sergeant Kolak questioned Respondent about the pipe, and Respondent volunteered that he had tried to smoke the marijuana residue in the pipe earlier that day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding that Respondent Rozell L. Hester failed to maintain good moral character and ordering that his certification as a correctional officer be suspended for one year. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2007.
