The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
The Issue The issue to be resolved is whether Respondent failed to maintain good moral character in violation of Section 943.1395(7), Florida Statutes (2006-2008),1/ and if so, what penalty should be imposed?
Findings Of Fact Respondent, John McAlpin, is a certified law enforcement officer, having been issued law enforcement certification No. 148408. At all times material to the allegations in the Administrative Complaint, Respondent has served as the Chief of Police of Sneads, Florida. At the time of the allegations giving rise to this case, A.G. was a 14-year-old girl from Sneads, Florida. At the start of the events at issue in this case, A.G. lived with her mother, Christina Simpson (now known as Christina Griffin); her step- father, Shelly Simpson; and her younger half-brother. On January 24, 2007, the Abuse Hotline of the Florida Department of Children and Families (DCF) received a call regarding the possible sexual abuse of A.G. by her step-father. A.G. was interviewed that same day by Amy Bates, a Child Protective Investigator, while she was still at school. Once A.G. indicated that she had been sexually abused, the initial interview was terminated, and Ms. Bates contacted Ms. Simpson for permission to have A.G. interviewed by the Child Protection Team (CPT). After receiving permission from her mother, A.G. was transported to the DCF offices and interviewed by a member of the CPT. Her CPT interview was admitted into evidence as Petitioner's Exhibit 2. Ms. Bates attempted to contact Respondent prior to the CPT interview so that, consistent with the Department's customary practice, law enforcement could observe the interview. At the time A.G.'s mother arrived at the DCF offices, Ms. Bates had not heard from Chief McAlpin, so she asked Lieutenant Daniels of the Jackson County Sheriff's Department (JCSO) to observe the interview as a courtesy to the Sneads Police Department (SPD). Lt. Daniels was already present at the DCF offices for reasons unrelated to this case. In the interview by the CPT team member, A.G. indicated that she had been molested by her stepfather, Shelly Simpson, over a period of two years, during which he touched her inappropriately and tried, without success, to have sex with her. She stated that the most recent times he had molested her were the morning of the interview, and over the Martin Luther King Day weekend. The CPT interview began at 3:15 p.m. and lasted approximately 45 minutes. At 4:00 p.m., Ms. Bates again attempted to call Chief McAlpin at SPD and was given his cell phone number, which she also called. After speaking with A.G.'s mother, Ms. Bates again called the police station at 4:28 to get an officer to accompany her to the home to meet with the stepfather. Only after contacting Lieutenant Daniels for assistance did she receive a call indicating that someone would meet her at the office of the SPD to go to the Simpson home. Ms. Bates and Ms. Simpson went to the police station where they met Officer Jarrett Tyus of the SPD. At that time, a copy of the CPT interview was left on Chief McAlpin's desk. The three adults proceeded to the Simpson's home: A.G. did not accompany them but instead went home with her aunt. Officer Tyus, Ms. Bates, and Ms. Simpson arrived at the Simpson home at approximately 5:45 p.m. Officer Tyus went to the door and spoke to Mr. Simpson, and brought him over to Ms. Bates, who reviewed the report of sexual molestation with him. Respondent arrived at the home at approximately 5:55 p.m. At that time, he spoke to Ms. Bates and to Ms. Simpson, and appeared to be aware of the nature of the allegations. Chief McAlpin stated that the allegations were out of character for Mr. Simpson, and asked Ms. Simpson if she had noticed anything, or if she and Mr. Simpson were having any problems. Chief McAlpin stated that these were serious allegations and that he did not know A.G., but he had known Mr. Simpson all of his life: that they were friends, and there would be an investigation. Ms. Bates did not observe Respondent gather any evidence at the family home that evening. Although he spoke to Shelly Simpson, he did not attempt to interview anyone at the Simpson home. Nor did he make any attempt to interview A.G. that day. Ms. Bates had concerns regarding Chief McAlpin's ability to handle the investigation objectively, given his knowledge of and prior relationship with the suspect, Mr. Simpson. Mr. Simpson was also an employee of the City of Sneads at the time. She expressed those concerns to her then- supervisor, Tamara Hudson. As a result of their conversation, Ms. Hudson called Lt. Daniels and requested that he "step in" and take over the investigation. However, the investigation remained with the SPD, and Chief McAlpin, for the time being. Typically, when there is an investigation regarding possible sexual abuse of a child, the DCF staff working the case would be in close, regular contact with the law enforcement investigator assigned to the case. However, after the evening of January 24, 2007, Ms. Bates had no face-to-face contact with Chief McAlpin during the investigation. Ms. Bates did, however, speak to him on January 31, 2007, to let him know that the CPT medical report had been received and, at his request, faxed a copy of the report to him. Once there was a determination that the complaint was founded, on February 1, 2007, the case was transferred to Anissa Cottongim, who worked as a case manager in the area of child protection. From that date until DCF closed the case in July 2007, Chief McAlpin never called Ms. Cottongim. There was, however, information provided to Chief McAlpin from DCF during this period. On February 14, 2007, Amy Bates spoke to Anissa Cottongim, who informed her that there was a possibility that there were other victims of sexual abuse by Mr. Simpson. Ms. Bates called Chief McAlpin on his cell phone and left him a message to return her call. She called again, about a half hour later, and spoke to him about the possibility of other victims. Chief McAlpin inquired whether the potential victims were family members of A.G., and was told that they were not related. Chief McAlpin indicated that Shelly Simpson had mentioned something to him the day before, and that he would call back in a few minutes and speak to Ms. Cottongim. He did not do so. Ms. Cottongim also forwarded to him the results of a psychosexual examination of A.G., although the date the report was transmitted is not apparent. Chief McAlpin denies receiving the information regarding other possible victims during his investigation. Ms. Bates' testimony is credited. On February 12, 2007, Respondent took the sworn statement of Shelly Simpson. While Mr. Simpson apparently requested a polygraph test, no such test was ever actually administered. On February 22, 2007, Chief McAlpin interviewed A.G. for the first time. He requested that Christina Simpson bring A.G. into his office for an interview. At that point, Ms. Simpson stated that she was confused and did not know "which way to go." Chief McAlpin asked for and received permission to interview A.G. alone, for the stated purpose of seeing if she were telling the truth or lying. Chief McAlpin told Ms. Simpson that he did not believe Mr. Simpson had molested A.G. The interview with A.G. was recorded, although Chief McAlpin told her the conversation was "just between us." He hid the tape recorder behind a sign on his desk so that she could not see it. The interview was over two hours and nineteen minutes long. Major Dennis of the JCSO opined that the interview sounded more like the interrogation of a suspect than the interview of a child victim. He also opined that it appeared from listening to the interview that Chief McAlpin was attempting to get A.G. to change her testimony. Major Dennis' description is an understatement. During those two-plus hours, Chief McAlpin told A.G. repeatedly that he believed she was lying and that it was "okay to make this right." While berating her, he told her he was her friend and that she was in no trouble. He also said, however, that she had told a "circle of lies" and did not want to be labeled as a liar, and that "sometimes people tell something so many times, they believe it." He asked A.G. if she was mad at her stepfather, whom he repeatedly referred to as Shelly, and that if she wanted him out of the home, Chief McAlpin could help her get what she wanted. He reminded her repeatedly that this case was serious and would affect a lot of people, and that it was time to "put some closure to this one way or another." He also asked her what she wanted to happen to her stepfather, who loved her and raised her and was like a dad to her. Respondent asked whether A.G. wanted him "locked up in prison with killers, robbers, and rapers," and stated that he did not want to put an innocent man in prison. Chief McAlpin asked A.G. how she would feel if her ten- year-old brother told people that she was doing bad things to him, and whether she would want someone to talk to him to get to the bottom of things and clear her name. He repeated several times that he believed that there were problems in the home and that A.G. had "issues" and was in need of counseling. He told this 14-year-old girl, who was alone in this lengthy interview with him, that she needed long-term, "in-house" counseling.2/ The examples given in paragraphs 21-22 are just a small sampling of the barrage of statements hurled at A.G. during this "interview." The number of questions actually asked of her could probably have been answered in a 15-20 minute span, at most. The remainder of the time, Chief McAlpin was suggesting reasons why she should recant; telling her how unbelievable she was; that there was no physical corroborating evidence; and what an ordeal she would face if she did not change her story. Yet through it all, while quietly crying, A.G. did not change her story. By contrast, Respondent acknowledged that with respect to his interview with Shelly Simpson, the suspect in this sexual molestation case, he "did not put a lot of pressure on him." At some time after interviewing A.G., Respondent spoke to Mark Sims, the State Attorney. He described the evidence that he had and opined to Mr. Sims that he did not think that there was sufficient evidence to charge Mr. Simpson. At that time, he considered the case to be over. During the time that Chief McAlpin was in charge of the investigation regarding A.G. and Shelly Simpson, A.G.'s grandfather, Robert Griffin, became very dissatisfied with the progress, or lack of it, of the investigation. He complained several times to Major Dennis of the JCSO. Eventually, on or about April 2, 2007, the JCSO took over the investigation, and the case was assigned to Lt. Daniels. Lt. Daniels did not request a copy of the investigative file compiled by Chief McAlpin, and the contents of Respondent's file are not in evidence. Lt. Daniels decided, given the controversy surrounding the case, he would start fresh. He reworked the case as if he had investigated it from the beginning. Almost immediately he arranged for a second medical exam, this time with a female doctor. Lt. Daniels interviewed all the witnesses he knew about and put together as much information as he could before interviewing Shelly Simpson, consistent with his usual practice to interview the subject of an investigation last. His interview with Mr. Simpson took place May 24, 2007. On June 28, 2007, Lt. Daniels submitted his file to Assistant State Attorney Jonna Bowman, with a criminal complaint affidavit charging Mr. Simpson with child abuse and sexual battery. When Ms. Bowman received the file from Lt. Daniels, he explained that he had taken over the case from SPD. She understood that Lt. Daniels did not have the file compiled by Chief McAlpin, and she requested the information from Respondent shortly after July 2, 2007. Respondent called her on July 5, 2007, saying he would bring her his file, along with the taped interview of A.G., the next day. He did not do so. A second request for the information was made, and again the information was promised but not provided. Ms. Bowman did receive some information in August and at some point drove to Sneads to talk to him about his investigation. At that time, Chief McAlpin kept telling Ms. Bowman that A.G.'s story had a lot of inconsistencies in it. He told her he had not quite finished his reports on the case, and did so while she was there, so he could print the information out and give it to her. Chief McAlpin also told her about his interview with A.G., which he represented to be approximately 30-45 minutes, and gave Ms. Bowman a digital recorder which was supposed to contain the interview. However, the recorder contained no interview of A.G. One of the "inconsistencies" upon which Respondent placed great emphasis had to do with the clothing A.G. wore the day that she went hunting with Mr. Simpson and shot her first deer. Chief McAlpin described a picture to Ms. Bowman in which he claimed A.G. was wearing overalls while holding her first deer. He stated that her claim that Mr. Simpson molested her that day was not credible because the molestation could not take place with A.G. wearing overalls. However, at a subsequent visit to the A.G.'s home, Ms. Bowman observed the picture of A.G. holding her first deer. She was not wearing overalls. Ms. Bowman asked again for the interview, and at some point in October 2007, a recorder labeled as belonging to SPD appeared on her desk, with no note of explanation. She found the interview difficult to listen to, but did not find the inconsistencies that Respondent claimed to exist in her story. A capias was issued for Shelly Simpson's arrest on October 9, 2007, charging him with lewd and lascivious molestation. Ms. Bowman left the State Attorney's office before the criminal trial and did not try the case. However, Mr. Simpson was found not guilty by a jury on October 3, 2008. Robert Griffin, A.G.'s grandfather, remained dissatisfied about the way the case was handled, and filed a complaint with the Governor's Office, which was referred to the Department of Law Enforcement (FDLE) in late 2007. In connection with FDLE's investigation, Chief McAlpin consented to a sworn interview by FDLE Investigator Ed Fortune. The interview, which was taped and admitted into evidence as Petitioner's Exhibit 3, is approximately 3.5 hours long. In that interview, Chief McAlpin stated that he requested the CPT interview tape on January 24, 2011, "as soon as I could get it" and got the tape through Officer Tyus. His statement conflicts with that of Amy Bates, and Ms. Bates' testimony is credited. However, inasmuch as the tape was placed on Chief McAlpin's desk as opposed to being given to him directly, it is conceivable that Chief McAlpin believed that Officer Tyus had obtained the tape and placed it there. Chief McAlpin stated that prior to the interview Ms. Simpson told him that she believed her husband and thought A.G. would admit that the story was a lie. At hearing, Ms. Simpson testified that she was confused and did not know which way to go. However, it is entirely possible that both statements are correct in that Ms. Simpson was placed in the untenable position of believing either her daughter or her husband, and may have voiced more than one opinion as time went on. Chief McAlpin also states repeatedly in the interview that he was not aware that there was information regarding additional victims when he completed his investigation. His statement conflicts with that of Shelly Bates, and Ms. Bates' testimony is credited. Further, Respondent knew it to be a false statement when he made it. During the interview with Mr. Fortune, there was some discussion regarding letters that were in A.G.'s room. These letters were characterized as inconsistent in terms of language and sexual knowledge with what A.G. had exhibited in the investigation. Chief McAlpin had become aware of the letters through either Christina Simpson or Shelly Simpson. When he did not receive the letters through Ms. Simpson, he asked Shelly Simpson to retrieve them. Chief McAlpin admitted that he had never asked any other subject of an investigation to retrieve evidence, and that the letters would have no chain of custody. He admitted that the letters had no evidentiary value, and that he could not be certain A.G. even wrote them, but in his mind they were relevant to disprove A.G.'s story. Much of the interview with Mr. Fortune deals with the quality of Respondent's investigation and the decision-making behind his investigative choices. He chose not to talk to key people in DCF because he did not know them; did not collect physical evidence; and did not clarify with DCF investigators or medical personnel those areas that he claimed were puzzling or inconsistent. In short, from a review of all of the evidence presented in this case, it appears that Chief McAlpin decided early on that A.G. was not telling the truth and conducted his investigation, to the extent he investigated at all, with the intention of disproving her allegations as opposed to investigating her complaint.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent, John McAlpin, be found guilty of failing to maintain good moral character in violation of section 943.1395(7), Florida Statutes, and That Respondent's law enforcement certification be suspended for a period of eighteen months, followed by two years' probation. DONE AND ENTERED this 26th day of October, 2011, 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 26th day of October, 2011.
The Issue The issues in this case are whether the Respondent, by committing the felony of armed trespass while employed as a deputy sheriff, failed to fulfill his duties and responsibilities as an employee of the Petitioner, and, if so, whether the termination of the Respondent's employment was consistent with applicable disciplinary policy.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a deputy sheriff. The Respondent had been employed for 12 to 13 years as a law enforcement officer prior to his employment with the Petitioner. He was employed by the Petitioner for more than six years prior to the termination at issue in this proceeding. In September 2009, two undercover law enforcement officers, one of whom was the Respondent, went from a public alleyway through a privacy fence and into the private backyard property of a Pinellas County citizen. The entry occurred at night. The alley and backyard area were unlit. The Respondent was dressed in shorts and a t-shirt and was armed with a gun. The officers had no search warrant authorizing their entry onto the private property. The Respondent's entry into the private backyard was an act of trespass. The commission of a trespass while armed constitutes a third degree felony. The Respondent did not report the trespass to any superior officer within the Petitioner's chain of command. The Respondent has asserted that he was merely following the other officer's lead on the night when the trespass occurred and did not think that he had acted improperly. During a deposition for an unrelated criminal case, the Respondent was questioned about whether he had observed another officer engage in a similar trespass. The Respondent resisted answering the question, sought legal advice from an assistant state attorney, and then declined to answer the question. Even after being questioned about the issue during the deposition, the Respondent still failed to report the incident to any superior officer within the chain of command. After a complaint of misconduct was filed against the Respondent, the Petitioner commenced an administrative investigation. During the investigation, the Respondent acknowledged the trespass, but attempted to minimize his participation in the incident and to assign responsibility for the trespass to the other law enforcement officer. Bob Gualtieri, the sheriff of Pinellas County, Florida, is responsible for operation of the Petitioner and is authorized to impose discipline on the Petitioner's employees who violate rules or regulations adopted by the Petitioner in accordance with a Civil Service Act. The Petitioner has adopted General Order 3-1 to establish a standard of conduct for the Petitioner's employees and has categorized misconduct into disciplinary levels based on the severity of a transgression. "Level 5" violations reflect serious misconduct. The Respondent's participation in the felony trespass and his failure to report the incident to his superiors constitute separate level 5 violations. The Respondent violated Rule 5.4, which requires that employees be aware of their assigned duties and responsibilities and take prompt and effective action in carrying them out. The Respondent violated Rule 5.5, which requires that employees observe and obey all laws and ordinances and report violations by written memorandum upon their first duty shift following a violation. The Petitioner has adopted General Order 10-2 to establish a point system to be followed by the Petitioner's Administrative Review Board for the imposition of discipline based on adopted guidelines. The Respondent has accumulated 75 disciplinary points, 60 of which are based on the trespass incident underlying this proceeding. Termination from employment is within the range of discipline established by the Petitioner's rules and procedures applicable to the facts of this case. The Respondent has asserted that the sheriff's exercise of discretion in terminating his employment was severe and unreasonable. There is no credible evidence to support the assertion. The basis for the Respondent's termination was the Respondent's commission of the felony of armed trespass and his failure to inform any superior officer within the chain of command of the incident. The sheriff's decision to terminate the Respondent from employment was clearly warranted. There is no evidence that the sheriff inappropriately applied the Petitioner's rules and procedures or that any similarly-situated employee has been subjected to lesser discipline by Sheriff Gualtieri for comparable conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Sheriff's Office enter a final order terminating the Respondent from employment. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 20th day of March, 2013. COPIES FURNISHED: Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Carole Sanzeri, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675
The Issue Whether Petitioner's application for licensure as a general lines agent should be granted.
Findings Of Fact By application dated July 12, 2002, Ms. Baskinger applied to the Department for a license as a general lines agent. On the application, Ms. Baskinger answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? On December 27, 2000, a one-count information was filed in the Circuit Court of the Twentieth Judicial Circuit In and For Charlotte County, State of Florida, charging Ms. Baskinger with welfare fraud in violation of Section 414.39, Florida Statutes, a third degree felony. On June 27, 2001, Ms. Baskinger entered a plea of guilty to the crime. Adjudication of guilt was withheld and Ms. Baskinger was placed on probation for a period of four years and ordered to pay restitution in the amount of $4,869.14. Ms. Baskinger was also required to perform 75 hours of community service. Ms. Baskinger made full restitution, and an Order Terminating Probation was entered on July 3, 2002. On July 12, 2002, Ms. Baskinger applied for licensure as a general lines agent. The Department denied her application for licensure by letter dated August 22, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.731(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Teresa M. Baskinger for licensure as a general lines agent. DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 4th day of March, 2003. COPIES FURNISHED: Teresa M. Baskinger 4461 Ewing Circle Port Charlotte, Florida 33948 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes (2003), and is responsible for licensing employees of pari-mutuel facilities. Respondent is a card dealer holding Florida occupational license number 6927724-1012 for employment as a card dealer at the Tampa Bay Downs racetrack. By application filed at the racetrack on December 3, 2003, Respondent applied for the referenced license. Persons unknown apparently conducted the application process for all employees of the facility. Employees completed the applications and submitted them at the racetrack, again to persons unknown. The application includes a section titled "Background Information." Question 1 asks in relevant part the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contender (no contest) to, even if you received a withhold of adjudication? Question 1 further provides as follows: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question in the affirmative. The question provides that if the applicant responds in the affirmative to the question, "form 0050-1" should be completed to disclose additional information about the convictions. Form 0050-1 includes space to list three criminal convictions. The application instructions related to the form state: "[i]f you have more than seven offenses to document on form 0050-1, attach additional copies . . . as necessary." Respondent completed a form 0050-1. On the form, he stated that he had been convicted of a misdemeanor in 1987. The Respondent identified the offenses as "trespassing," "suspended license," and "cashed check." Respondent stated that the penalty had been probation, which was violated, and that he was required to finish the sentence. Respondent initially identified the location of the conviction as Pasco County, but crossed through the writing and changed it to Hillsborough County. Above Respondent's signature on the application is a statement that in material part provides as follows: I hereby certify that every statement contained herein is true and correct and that I understand that any misstatement or omission in this application may result in denial or revocation of my pari-mutuel license. Other than the information on the application, there was no evidence offered at the hearing that Petitioner was convicted of a misdemeanor in 1987 in Hillsborough County. Petitioner asserts that at the time he filed the application, he completed a second form 0050-1 on which he disclosed additional information related to felony convictions. At the hearing, he testified that an unidentified person allegedly involved in the application process instructed him to make the felony disclosures on a second form. Although there is no evidence contradicting Respondent's account of the events, the application submitted through the racetrack to Petitioner did not include a second form 0050-1. In 1983, Respondent was adjudicated guilty of felony charges, including Forgery and Uttering a Forged Check in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8101927CFAWS). In 1990, Respondent was adjudicated guilty of a felony charge of Grand Theft, Third Degree in Hillsborough County, Florida (Circuit Court, Thirteenth Judicial Circuit, Case No. 90-279). In 1991, Respondent was adjudicated guilty of a felony charge of Grand Theft in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8701762CFAWS). A few days after the application was completed, Respondent met with an employee of Petitioner (identified as "Nick") to discuss the felony convictions. "Nick" did not testify at the hearing. As filed with Petitioner, Respondent's application failed to include a second form 0050-1 and did not disclose the felony convictions identified herein. There is no evidence that Respondent has had any involvement in criminal activity since 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order suspending Respondent's occupational license for a period of three months. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of December, 2004. COPIES FURNISHED: Ralf E. Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stefan Thomas Hoffer Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jerry M. Bonett 7801 Willowbrook Court Hudson, Florida 34667 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether the Respondent, the Department of State, Division of Licensing, should grant the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License. Specifically, under Section 493.6118(3), Fla. Stat. (1991), the issue as to each application is whether there is clear and convincing evidence that the Petitioner lacks good moral character.
Findings Of Fact The Petitioner, Ricky O. Dawes, was a municipal law enforcement officer from approximately 1975 through the middle of 1977. He was a deputy sheriff and, later, a detective with the Hillsborough County Sheriff's Office from approximately June, 1978, through April, 1979, and from May, 1980, through August, 1992. Background checks when he was employed with the Sheriff's Office revealed no evidence of facts that would establish a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation. Nor is there any evidence, during the course of his employment through approximately May, 1992, that the Petitioner had a personal history of dishonesty, unfairness, or disrespect for the rights and property of others or for the laws of Florida or of the nation. During the summer of 1992, and for some time before, the Hillsborough County Sheriff's Office was involved in a substantial multiple-law-enforcement- agency investigation. In approximately June or July, 1992, the law enforcement agencies involved learned that the subjects of the investigation not only knew about it but had been given copies of four pages of notes made by members of the Sheriff's Office involved in the investigation that listed, by name and in some cases additional identifying information, some 15 "suspects" and 22 "possible targets." The disclosure seriously compromised the investigation, to say the least. An internal investigation was launched to determine the source of the damaging disclosure. It was revealed that a copy of the notes had been in the copying room of the identification and records section of the Sheriff's Office for approximately six to eight weeks prior to the disclosure. An employee recalled: seeing it on a work table in the copying room at the beginning of that time period; looking at it and realizing it was something important that should not be made public; thinking that whoever put it there would be back for it soon; and finishing his business in the copying machine, leaving the notes where he had found them. He also recalled returning to the copying room the next day and not seeing the notes where he had left them. He assumed at the time that whoever had put them there had returned and removed them. But later, in July, 1992, he read in the local newspapers that copies of documents sounding much like what he had seen in the copying room had been given to the suspects under investigation. He returned to the copying room and found the notes in a stack of miscellaneous papers. Several people, including the Petitioner, were questioned under oath during the course of the internal investigation. The Petitioner was questioned in a deposition conducted by an assistant state attorney on or about July 30, 1992. During the deposition, the Petitioner was shown copies of the four pages of notes that were recovered from the copying room and was asked whether he had ever seen a copy of them. The Petitioner looked at all four pages carefully (the deposition transcript indicates a pause in the proceedings) and answered, "no." After the deposition, the four pages of notes recovered from the copying room were processed for latent fingerprints. The Petitioner's left thumb print appeared on the left side of one of the pages, labeled at the top "Possible Targets," about two-thirds of the way up the page. On the list of 14 "possible targets" on that page were the names Vincent Loscalzo, who the testimony indicates is reputed to be involved in organized crime in the Tampa area, and several others whom the Petitioner either knew personally or whose names he would have recognized. The Petitioner's left thumb print also appeared on the left side of the next page of the list of "possible targets," also about two-thirds of the way up the page. On the list of eight names on that page were at least two names the Petitioner would have recognized. One was the husband of the mayor of the City of Tampa. The Petitioner knows Vincent Loscalzo personally. While employed with the Hillsborough County Sheriff's Office, the Petitioner also was in business for himself distributing an oil re-refiner. The Petitioner is concentrating on that business now that he has "retired" from the Sheriff's Office. (The Petitioner tried to give the false impression that his "retirement" in August, 1992, had nothing to do with the internal investigation and that the Petitioner had been planning for some time to retire in August, 1992, to concentrate on his business.) The product was manufactured by a company in which Vincent Loscalzo has an ownership interest. Loscalzo has an office above a lounge he owns in Tampa, called the Brothers Lounge, and the Petitioner has had conversations with him there. It is found that the Petitioner testified falsely on his deposition that he had never before seen copies of the four pages of notes recovered from the copying room. Many people, besides the Petitioner, had access to the copying room during the six to eight weeks that the notes were there. Most had legitimate Sheriff's Office business to conduct, and they would not have been questioned or supervised. Others, not having legitimate Sheriff's Office business to conduct, also could have entered the copying room unquestioned and unsupervised during that time period. Two other person's fingerprints were identified on the notes- -the person who brought the notes into the copying room and left them, and the person who saw the notes and recovered them after reading about them in the newspaper. Not all people who touched the notes necessarily would have left fingerprints that could be lifted and identified. Many factors would enter into the question whether someone who touched the notes would leave prints that could be lifted and identified. In addition to those identified, some unidentifiable prints were left on the notes. Under these facts, the Respondent concedes in its proposed recommended order that it was unable to prove, by clear and convincing evidence, that the Petitioner criminally disclosed the existence of a substantial criminal investigation to the subjects of the investigation. On or about January 23, 1993, the Petitioner was stopped for driving a motor vehicle while impaired by alcohol consumption. As the arresting officer approached the Petitioner's vehicle, from the rear, the Petitioner opened the driver-side door and got out. As he did, his left pant leg got caught on an object that appeared to be under the pant leg at the Petitioner's ankle, and the pant leg bunched up and bulged. The Petitioner identified himself to the arresting officer as a retired deputy sheriff. Based on the arresting officer's experience and knowledge, particularly that off-duty law enforcement officers often concealed their firearms under the pant leg in an ankle holster, the arresting officer asked if the bulge he saw under the pant leg was a firearm. The Petitioner acknowledged that it was. In answer to the officer's question whether the Petitioner had a permit to carry a concealed firearm, told the officer that he did. In fact, the Petitioner did not even apply for a concealed firearm license until March 30, 1993, and one was not issued to him until April 6, 1993. It is found from the clear and convincing totality of the evidence in this case, taken as a whole, that the Petitioner lacks a personal history of honesty, fairness, and respect for the rights of others and for the laws of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of State, Division of Licensing, enter a final order denying the applications of the Petitioner, Ricky O. Dawes, for a Class "C" Private Investigator License and for a Class "G" Statewide Firearms License. RECOMMENDED this 19th day of August, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2048S To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Rejected as not proven that the resignation was totally voluntarily. Also, no party questioned about it at the hearing knew the procedures for licensure by a former law enforcement officer. In any event, the procedures are matters of law, not fact, and are set out in Section 790.06, Fla. Stat. (1991). Otherwise, accepted and incorporated to the extent necessary. Rejected in part as not proven and as being conclusions of law. Fact of the pendency of criminal proceedings, a ruling suppressing evidence, and the State's appeal accepted but unnecessary. Rejected as not proven and as contrary to facts found and as contrary to the greater weight of the evidence that the firearm was visible. (It was only detectable.) Part of the rest is rejected as being conclusions of law, and the other part of the rest is accepted and incorporated to the extent not subordinate or unnecessary. Accepted but unnecessary that the Petitioner has been charged but not convicted. The rest is rejected as being argument and conclusions of law. Accepted (the questions to the witnesses excluded reference to the charges leveled in this case) and subordinate to facts found. Rejected in part as being argument and conclusions of law and in part as not proven and as contrary to facts found and to the greater weight of the evidence. First sentence, accepted and incorporated. Second sentence, rejected in part as being argument but otherwise accepted but in part subordinate to facts contrary to those found and contrary to the greater weight of the evidence. Third sentence, rejected as being argument and not proven and contrary to facts found and contrary to the greater weight of the evidence. Fourth sentence, rejected for the same reasons as in 3., above. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated. 3. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-9. Accepted and incorporated to the extent not subordinate or unnecessary. 10. Accepted but subordinate and unnecessary. 11.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. Accepted but subordinate and unnecessary. 15.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. COPIES FURNISHED: Ellis Faught, Jr., Esquire 206 Mason Street Brandon, Florida 33511 Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue At the commencement of the hearing, the parties stipulated that Petitioner had filed applications for Class "A" and Class "C" licenses and was qualified except for the failure to demonstrate good moral character. The bases for the dispute over Petitioner's character were: Petitioner's arrest record; Petitioner's alleged falsification of his applications as to his employment with the Pittsburgh Police Department; and Petitioner's check for the application fee was dishonored for insufficient funds.
Findings Of Fact The Petitioner duly filed applications with the Department of State, Division of Licensing for Class "A" and Class "C" licenses. Except for matters related to Petitioner's good moral character, Petitioner is qualified for licensure. Petitioner's application reflects that he answered the question whether he had been arrested affirmatively with the following comment: The Courts of the Commonwealth of Pennsylvania in all five cases from 1965 to 1974 - ruled that as a Police Officer, I acted within the scope of my authority - These cases stem from being an undercover Narcotics Officer. The Petitioner's arrest records as maintained by the Federal Bureau of Investigation reveal several juvenile offenses, not considered by the Department and not at issue. This record also reveals the following arrests of Petitioner as an adult: Date Place Charge Disposition 06/09/66* Pittsburgh VDD & CA Not guilty 08/15/66* Pittsburgh VUFA Not guilty 08/20/66* Allegheny County VDDCA 06/24/67* Allegheny County VUFA Unavailable per contra 06/30/70 *Only one offense with different charges made on different dates 09/05/74 Allegheny County Theft, VUFA Discharged 09/23/74 05/07/75 Allegheny County Fraud - imper- sonating a public servant 12/19/79 Office of Provost No charge No charge Martial Petitioner presented testimony and supporting documentary evidence that the arrests reported on the FBI criminal history for the dates 06/09/66 through 06/24/67 were all related to the same offense, and that these charges were resolved in favor of the Petitioner by a verdict of not guilty. See Petitioner's Exhibit #1. The judge arrested judgment of the two years' probation for the charge of 05/07/75. See Respondent's Exhibit #2. Petitioner stated that based upon his status as a capital police officer he was not guilty of fraud or impersonation of a public servant. The Petitioner's remaining arrest was on 09/05/74, and was discharged. Petitioner's explanation of these arrests is not consistent with the explanation stated on his application form. According to the resume accompanying his application, Petitioner was employed on the indicated dates in the following positions: Date Position 1963 to 1965 Globe Security 1965 to 1970 Pittsburgh Police Department, special patrolman 1970 to 1973 NAACP special investigator and Bucci Detective Agency 1972 to 1976 Commonwealth Property Police with State of Pennsylvania 1973 to 1974 Part-time security guard in addition to employment listed above May, 1976 January, 1977 Federal Civil Service guard March, 1977 September, 1977 Part-time security guard with A&S Security December, 1978 Sears, Roebuck and Company as to June, 1980 undercover security investigator February, 1979 Security guard to June, 1980 September, 1979 VA, guard at VA Hospital GS5 to June, 1980 June, 1980 Came to Florida Petitioner stated that his check for the application fee bounced because of his travel back and forth to Pennsylvania to try to develop the data to support his application, which depleted his bank account. He has since made the check good and paid the fees by money order.
Recommendation The Petitioner has failed to establish that he has the requisite good character for licensure; therefore, it is recommended that the Petitioner's applications for Class "A" and Class "C" licensure be denied. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mr. James Barnett 758 Woodville Road Milton, Florida 32570 James V. Antista, Esquire Assistant General Counsel Department of State Division of Licensing R. A. Gray Building, Room 106 Tallahassee, Florida 32301 STEPHEN F. DEAN, Hearing Officer Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1982. George Firestone, Secretary Department of State The Capitol Tallahassee, Florida 32301
