The Issue The issue is whether Respondent's certification as a Firefighter II Compliance should be permanently revoked for the reasons stated in the Administrative Complaint (Complaint), dated June 6, 2018.
Findings Of Fact The Department is the state agency responsible for licensing and regulating firefighters in the State. Respondent is certified in Florida as a Firefighter II Compliance. He holds Certificate No. 139586. Until the incident underlying this controversy arose, Respondent was employed by the Sarasota County Fire Department as a firefighter/paramedic. He now is working in the emergency room of a local hospital. The parties have stipulated that on March 21, 2018, Respondent entered a plea of nolo contendere to aggravated assault with a weapon, a third-degree felony punishable by imprisonment of one year or more under Florida law. Adjudication was withheld, Respondent was placed on probation for a period of two years, and he was ordered to pay court costs, fines, and fees in the amount of $1,525.00. See also Dep't Ex. 19. In response to the Complaint, Respondent essentially argues that: (a) he should not have been charged with the underlying criminal offense because he was defending himself against an aggressor in a road rage incident, and (b) he entered a nolo contendere plea based on bad advice from his attorney. At hearing, Respondent gave his version of the events resulting in his arrest. Also, two police officers involved with his arrest testified to what they observed and reported. Their testimony conflicts in many respects with Respondent's testimony. The undersigned will not attempt to reconcile the conflicts, as this proceeding is not the appropriate forum in which to relitigate the criminal charge. During the criminal case, Respondent was represented by a criminal law attorney who presented him with two options: enter into a plea arrangement or go to trial and risk a harsher penalty if he were found guilty. Respondent says he accepted his counsel's recommendation that he enter a plea of nolo contendere on the belief that he would not have a felony arrest on his record. After the plea agreement was accepted by the court, Respondent learned that the plea required revocation of his certification and loss of his job. Respondent also testified that even though he paid counsel a $15,000.00 fee, his counsel did little or no investigation regarding what happened, as he failed to depose a single witness before making a recommendation to take a plea.1/ In hindsight, Respondent says he would have gone to trial since he now believes he had a legitimate claim to the "castle defense," and the so-called victim in the incident (the driver of the other car) has a long criminal history and is now incarcerated. At this point, however, if Respondent believes an error in the legal process occurred, his only remedy, if one exists at all, is through the court system and not in an administrative proceeding. A felony plea constitutes noncompliance with the certification statute and requires permanent revocation of a certification. According to a Department witness, however, five years after all requirements of the court's sentencing have been met, the Department has the authority "in a formal process" to make a "felony conviction review" that may result in the reissuance of a certification. Except for this incident, Respondent has no other blemishes on his record. He served in the United States Marine Corps, with combat tours of duty in Iraq and Afghanistan, he was honorably discharged, and he was honored for saving a life at a Target store while off-duty. He has apologized for his actions, taken an anger management course, and received further treatment for Post-traumatic Stress Disorder at a local Veteran's Administration facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order permanently revoking Respondent's certification. DONE AND ENTERED this 15th day of February, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2019.
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
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent, Melvin Roberts, was born on July 14, 1967. He was certified by the Criminal Justice Standards and Training Commission on March 1, 1993, and was issued correctional certificate numbered 151525. Respondent has been employed as a certified correctional officer with the Florida Department of Corrections since January 29, 1993. On October 28, 1994, Officer Elise Dillard-Gonzalez of the Miami-Dade Police Department was working as part of an undercover prostitution sting at Southwest 8th Street and 69 Avenue. At approximately 11:10 p.m., Respondent, who was alone, pulled over to the curb and motioned to her to approach his vehicle. When she did, he requested a "fuck for $20." She signaled to the undercover officers across the street, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. On November 10, 1994, Officer Sonja Crespo of the City of Miami Police Department was working as part of an undercover prostitution sting at Biscayne Boulevard and Northeast 73rd Street in Miami. Respondent, who was alone, approached her and gestured at her by placing a finger on one hand through a circle made by the fingers on his other hand. When she went over to Respondent's vehicle, he offered her $20 for a "fuck." She signaled to other near-by police officers, and Respondent was arrested for soliciting prostitution, in violation of Section 796.07, Florida Statutes. Rather than going forward on the charges for the two arrests, the State Attorney's Office agreed to place Respondent in some type of pre-trial diversionary program. Respondent was suspended from his employment with the Florida Department of Corrections for 10 consecutive days beginning April 17, 1995, for failing to report his arrests to his employer within 3 days and for being arrested, conduct unbecoming a correctional officer. Other than the October and November 1994 arrests, Respondent has not been arrested. Other than the disciplinary action imposed in April 1995, Respondent has had no disciplinary action taken against him as a correctional officer for the State of Florida. The superintendent at the Dade Correctional Institution where Respondent is employed considers Respondent to be a good employee and would like to continue Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him, finding mitigating factors to be present, and suspending Respondent's certification as a correctional officer for 20 days. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 7th day of May, 1999. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards for certified law enforcement and correctional officers in the State of Florida. The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on December 2, 1980, and was issued certificate No. 15-84-599-01. Correctional Officer Teresa Allen worked at Lake Correctional Institute as a guard and at times pertinent hereto was working as a perimeter guard stationed in a pickup truck operating around the periphery of the prison. In the early morning hours of March 18, 1985, Ms. Allen arrived at her duty station in the truck on the perimeter of the fenced confinement area. The Respondent had been witness Allen's counterpart, stationed in that same pickup truck at the same point on the 4:00 p.m. to 12:00 midnight shift immediately prior to Ms. Allen's shift. When Ms. Allen got into the pickup truck, she observed and retrieved from the floor of the pickup truck, a scrap of aluminum foil, a paper towel and a plastic bag. The paper towel appeared to have been wadded up or torn up but had writing in ink on it. It appeared to her to be the Respondent Margaret Seale's handwriting, inasmuch as she was experienced in observing the Respondent's handwriting. She took the handwritten note or letter on the paper towel to her superiors, Lts. Flowers and Branch. Upon receipt of that letter, Lts. Flowers and Branch reconstructed it with cellophane tape. It ultimately was admitted into evidence as Petitioner's Exhibit 1. The letter indicates that the Respondent intended sending the addressee, someone she called "Baby" a "50-cent piece". She thereafter indicated she could not resist "taking a pinch." After the addressee of the letter was to receive the intended "50-cent piece" the Respondent directed the recipient to destroy all foil and plastic immediately thereafter. The Respondent then directed the recipient of the letter as to how to communicate with her, and urged the recipient not to go anywhere, but to "make some money" with her. Mr. Michael Lanfersiek is a special agent of the Florida Department of Law Enforcement. He is trained in narcotics investigation related to smuggling and trafficking in narcotics, controlled substances and related organized racketeering. He was established to be an expert in narcotics investigation, and in interpreting the jargon used in the "drug trade." It was thus established that a "50-cent piece" refers to $50 worth of drugs or slightly under one gram of heroin or cocaine, for example. The reference in the letter to the directed destruction of the foil and plastic refers to the aluminum foil and plastic bag wrapping of the cocaine' or heroin which is trafficked in a powder form and requires such a wrapping. Thus, the witness established that the letter showed that the writer of it had trafficked or transmitted a controlled substance to the recipient of the letter, and was telling him to destroy the wrapping material after receipt of the drug. Inmate James Bryant had been suspected of trafficking in drugs inside the Lake Correctional Institute. The Respondent was not on any inmate's "visitors approved list," but recently had filed a request form asking to visit the suspected inmate, James Bryant. That inmate was later transferred to Marion Correctional Institute some two months after the Respondent resigned. Mr. Michael Page is the Inspector of Prisons for the Marion County area. Mr. Page is charged with investigating both prison staff and inmates and was familiar with the Respondent's handwriting. It appeared that the handwritten note, Petitioner's Exhibit 1, was written in the Respondent's handwriting and he had this confirmed to his satisfaction by a handwriting expert employed by the Florida Department of Law Enforcement. The Respondent refused to confer with Mr. Page without the presence of her attorney. Some two days after he initially requested an interview with her she resigned. There is no question that the Respondent authored the subject letter which reveals clearly that she proposed and intended to transmit illicit drugs to another person, established to be an inmate in the Lake Correctional Institution, for the purpose of that person marketing the drugs to others in return for money, of which the Respondent would receive a portion. Indeed, in the prehearing stipulation admitted into evidence on the day of hearing, and signed by the Respondent as well as Petitioner's counsel, it is admitted by Respondent that she personally wrote the note identified as Petitioner's Exhibit 1, and that she wrote the note while she was employed as a correctional officer at the Lake Correctional Institution. Thus, in view of the stipulation, which is accepted, and the unrefuted testimony of the witnesses who were familiar with the Respondent's duty station and hours of employment, her past history of attempting to contact and visit an inmate already suspected of drug trafficking, and her handwriting, it is patently apparent that the Respondent did indeed possess and intend to deliver to another, for resale, illicit controlled substances. No contrary testimony or evidence having been offered, the charges have thus been established.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, the pleadings and arguments of counsel, it is, therefore RECOMMENDED that the certification of Margaret C. Seales as a correctional officer be REVOKED. DONE and ENTERED this 19th day of May, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Joseph S. White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Margaret C. Seales 300 Dorsett Avenue Lake Wales, Florida 33853 Daryl G. McLaughlin, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2004.
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 in this case is whether the Petitioner should be placed on the convicted vendor list.
Findings Of Fact On May 31, 1990, Borden pled guilty to commission of a public entity crime, as defined by Section 287.133(1)(g), Fla. Stat. (Supp. 1996), for: a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within Peninsular Florida, lasting from the early 1970's through July, 1988; a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within the Florida Panhandle, lasting from the early 1970's through July, 1988; and a conspiracy to rig bids for the award and performance of contracts to supply dairy products for use at federal military installations within Peninsular Florida and the Commonwealth of Puerto Rico, and at the Kings Bay Naval Submarine Base in Georgia, lasting from the early 1970's through July, 1988. As a corporate entity, Borden was culpable of the crimes committed by its employees or agents. However, as set out in more detail in the Joint Stipulation, when the crimes came to the attention of Borden's corporate management, Borden cooperated with state and federal investigations and prosecutions of the crimes, promptly terminated the employees and disassociated itself from individuals implicated in the crimes, and promptly paid the damages and penalties resulting from Borden's conviction. As set out in more detail in the Joint Stipulation, Borden notified the Department of Management Services within 30 days of its conviction. As set out in more detail in the Joint Stipulation, in addition to terminating the employees implicated in the crimes, Borden has instituted self- policing to prevent public entity crimes. As set out in more detail in the Joint Stipulation, after a period of suspension by the Defense Logistics Agency of the federal government in relation to Borden's public entity crime, the suspension was terminated, and Borden's Dairy Division has been reinstated as a qualified government contractor. As set out in more detail in the Joint Stipulation, Borden has demonstrated its good citizenship with the exception of the public entity crime of which it was convicted. As set out in more detail in the Joint Stipulation, other than the public entity crime conviction itself, there was no evidence that it is in the best interest of the public to place Borden on the convicted vendor list.
The Issue The issue to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.
Findings Of Fact Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO employee was at the scene of some of the controlled purchases. A video recording of some of the buys showed Respondent directly in front of an illegal drug transaction. As a result, Respondent’s conduct was also investigated. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.” Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B- 27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2013. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Labay (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
