The Issue The Issue for consideration is this matter is whether the Respondent, Kinnett Dairies, Inc., should be placed on the State of Florida's convicted vendors list because of its conviction on January 9, 1990 for "making false statements to a federal agency."
Findings Of Fact The Department of General Services is the state agency required, pursuant to Section 287.133(3)(d), Florida Statutes, to maintain a list of the names and addresses of those persons who have been disqualified from the public contracting and purchasing process under that section. On May 16, 1991, Kinnett, pursuant to a plea agreement with the State of Georgia, entered a plea of nolo contendere to a one count felony charge brought under Section 16-10-22, Official Code of Georgia for conspiracy in restraint of trade. On July 31, 1991, Kinnett was convicted in federal court of a one count felony charge brought under Section 1 of the Sherman Antitrust Act, for a combination and conspiracy to suppress and eliminate competition by rigging bids. Pursuant to the requirements of the Florida statute in issue here, Kinnett made timely notification of those convictions to the Florida Department of General Services. Thereafter, based on those convictions, the Department concluded it was in the public interest to place Kinnett on the convicted vendors list. The parties have stipulated that concurrently with and as a part of the agreement for the entry of the plea of nolo contendere to the state charge, Kinnett entered into an agreement with the State of Georgia whereby it paid a fine of $10,000.00 and costs of an additional $10,000.00. It also cooperated fully with the investigation of the Attorney General of the State of Georgia which led up to the charge. On the same date, May 16, 1991, Kinnett also entered into an agreement with the United States Department of Justice whereby it plead guilt to one felony count, as alleged in the information, and agreed to pay criminal penalties of $300,000.00 over a four year period and $25,000.00 in civil damages to the United States. On July 19, 1989, Kinnett entered into a settlement agreement with the State of Florida regarding possible bid rigging of school requirements contracts in Florida by various dairies and paid settlement sums of $150,000.00. All penalties and civil liabilities due to the federal and state governments have been paid. Kinnett fully cooperated with both Florida and Georgia in connection with their investigations into its activities. It also cooperated with the federal Grand Jury investigating its activities, a matter which was confirmed in an October 8, 1991 letter from the federal prosecutor to the Department. No Kinnett employees were indicted as a result of the investigations by the federal and state governments as noted. No member of Kinnett's top management had knowledge of the alleged conduct of the four employees who were implicated in the misconduct involved herein. None of those four employees are still associated with Kinnett. Kinnett has implemented an active antitrust and ethics compliance program developed with the advice and assistance of experienced antitrust counsel. Inherent in this program is the adoption of a Code of Ethics and Standards of Conduct regarding antitrust matters; establishment of an ethics committee to monitor compliance; establishment of a reporting "hotline"; adoption of new bidding procedures bringing upper management into the pricing process; implementation of a training program for all personnel; and adoption of a policy and procedure review program to oversee both internal and external review of company ethics, policies and procedures. Going beyond the minimal requirements, Kinnett has arranged for outside accountants to perform a yearly, in-depth audit of all company books and accounting and pricing practices and has retained an expert in ethics to review existing policies and procedures and make recommendations for improvement. Kinnett has maintained its long-standing involvement in both civic and charitable activities in and around the Columbus, Georgia area and employs disabled veterans and military retirees, who currently make up 38% of its workers, when possible. It was recognized by the Georgia Department of Labor for its efforts in this area. Kinnett was one of the first companies in the Columbus, Georgia area to test both employees and job applicants for drug use, and has endorsed the Mayor's Task Force for Drug Free Columbus and consistent therewith has been instrumental in assisting other companies to establish programs to address substance abuse. Its officers are active as leaders in various civic organizations and it has given generously to numerous public, civic and charitable organizations. No matters in aggravation, other than the existence of the pleas, the convictions, and the penalties involved herein was presented by the Department. No evidence was presented relating to a conviction in January, 1990.
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 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.
Findings Of Fact Fuller Warren Crews was employed until 1959 as a police officer in Jacksonville, Florida. In 1959, he was permitted to resign rather than face disciplinary charges. In 1959, Crews pled guilty in Jacksonville to damage to telephone equipment, a misdemeanor. Crews was sentenced to six months in the county jail. In 1960, Crews was found guilty of possession of tools used in committing crimes and pled guilty to simple larceny in Tifton County, Georgia. Be was sentenced to three to five years in prison in Georgia. Crews was fully pardoned for the offense of possession of tools used in committing crimes on October 6, 1975. Approximately eight to ten years ago, Crews became active within tie Nassau County Sheriff's posse helping to reorganize those police auxiliary groups. He was very dedicated and did a fine job, eventually becoming Captain of the posse. Crews applied for a position as Deputy Sheriff in Nassau County in 1976. He was interviewed by the Sheriff, who he advised of his criminal record. The Sheriff desired to hire Crews and contacted the Police Standards and Training Commission. In January, 1976, the Sheriff's Department provided the PSTC with various data on Crews. This data constituted the application for certification by the Commission, which does not have an application form. This application led to the processing of Crews' certification over the next two years. The procedures of the Department delegated to individual law enforcement agencies the task of conducting background investigations. Basic background data on Crews' convictions and former employment was provided the PSTC prior to Crews' certification on February 3, 1978 (Transcript, pages 178 and 179). In the course of processing his application, Crews appeared informally before the Commission concerning his certification on August 20, 1976. At that time questions were asked of Crews by the Commission regarding his dismissal from the Jacksonville Police Department. Crews responded that he had been discharged because of charges involving unlawful damage to private property (Transcript, pages 129, 165 and 166). There was no indication that Crews failed in any way to disclose his past record either in his application or in his statements to the Commission. Crews was denied certification because of the Commission's interpretation of Chapter 112.011, Florida Statutes, to Crews' pardon and the Federal Firearms Control Act, 18 U.S.C. 922(h) (Exhibit #2). Crews' fingerprints were taken by the Sheriff's Department and forwarded to the Florida Department of Law Enforcement (FDLE) but not to the PSTC. The FDLE forwarded Crews' fingerprints to the Federal Bureau of Investigation (FBI). The FBI sent one fingerprint card and Crews' RAP sheet back to the FDLE but not to the PSTC, and the FDLE sent the fingerprint card and RAP sheet to the Sheriff's Department. Under the PSTC's standard procedures, the Sheriff's Department sent this data to the Commission when Crews was hired, the day after his certification. The Sheriff's Department had knowledge of Crews criminal convictions and dismissal from the Jacksonville Police Department from the RAP sheet and Crews' statements to the Sheriff. On February 3, 1978, the Commission certified Crews. There was a discussion of Crews' background by the Commission, particularly his pardon, after which Crews was certified. His certification resulted from the Commission's interpretation of the law (Transcript, pages 166, 167, 182, 184, 105 and 186. See also attached minutes, Exhibit #4 and letter from Smith to Long). According to a member of the Commission at that time, Crews' certification was not a clerical error but resulted from the Commission staff's failure to follow up on data which it possessed (Transcript, pages 189 and 190) Many co-workers, the Sheriff by whom Crews is employed, neighbors and others testified regarding Crews' reputation in the community and their personal assessments of Crews' character. He is considered to be truthful, trustworthy, honest and hardworking. He has worked as a deputy sheriff since 1978 and has a reputation as a fine professional law enforcement officer respected by his co- workers and associates, many of whom testified in his behalf.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Police Standards and Training Commission toe no action to revoke the certification of Fuller Warren Crews because it lacks authority to consider any grounds for revocation which preexisted its initial final action of certification, and because the record reflects that Fuller Warren Crews has maintained good moral character. DONE and ORDERED this 18th day of November, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Administrative Law Section The Capitol Tallahassee, Florida 32301 James Corrigan, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. CASE NO.: 80-921 FULLER WARREN CREWS, Respondent. /
The Issue Can the Board of Real Estate consider matters surrounding the offense to which a person pleads guilty in determining whether that person possesses the necessary character to be licensee? What is the evidentiary effect of a plea of guilty by an applicant for licensure? Is the Petitioner qualified for licensure?
Findings Of Fact Petitioner Edward J. Gibney made application to The Board of Real Estate for licensure as a real estate salesman. The Board denied Petitioner's application pursuant to Section 475.25(1)(f), Florida Statutes, because he was convicted of crimes against the laws of the United States and against the laws of the State of New Jersey involving moral turpitude. Petitioner pleaded guilty to the crimes of conspiring to commit fraud on medicaid and medicare claims, a felony under the laws of the United States. He also pleaded guilty to a similar offense which was a felony under the laws of New Jersey. Both offenses arose out of the same factual situation. The sole grounds for denial of Petitioner's application were his criminal convictions and the matters surrounding them. The Petitioner is otherwise qualified for licensure. After initial notification of the Boards intention to deny his application, the Petitioner requested and received an informal hearing before the Board. The Board notified Petitioner that it still intended to deny his application, and the Petitioner requested and was granted a formal hearing. The transcript of the Board's informal hearing was received as Petitioner's Composite Exhibit #1. Petitioner was the only witness at the hearing. He explained very candidly the facts surrounding his entry of guilty pleas to the criminal charges brought against him. His testimony was uncontroverted and is accepted as true. Petitioner, a graduate chemist, was qualified and licensed as a medical laboratory director in New Jersey. For 15 years prior to 1975, he owned and operated a small medical laboratory directly providing clinical laboratory services to private physicians. In 1975, Petitioner was approached several times over a period of three months by Seymour Slaughtnick to provide laboratory services to several doctors for medicaid/medicare patients. Slaughtnick was functioning as an intermediary. Slaughtnick picked up test samples at the doctors' offices and transported them to another laboratory. Slaughtnick wanted to change laboratories because of the poor quality laboratory work. Although Slaughtnick's function was described, Slaughtnick's relationship with the other laboratory or the doctors was never defined. Petitioner described Slaughtnick as a salesman. Petitioner initially refused the Slaughtnick offer because he had not done medicare/medicaid work and did not know how to process the paperwork. Slaughtnick continued to press Petitioner for a commitment to do this work and offered to prepare and submit all the paperwork for Petitioner. Slaughtnick and petitioner eventually agreed to an arrangement under which Slaughtnick picked up the samples, brought them to Petitioner's laboratory, transmitted the test results back to the physicians, and prepared Petitioner's billings to medicare/medicaid for the professional services rendered. Petitioner performed all the laboratory work as ordered by the physicians and prepared all test results, paying Slaughtnick a percentage of the fee for each test for his services. Petitioner was aware that his arrangement with Slaughtnick and permitting Slaughtnick to bill in his name was illegal under New Jersey law. To assure himself that Slaughtnick's billings were in order, Petitioner checked on Slaughtnick's billings after they began to work together. The State of new Jersey's medicaid/medicare plan was administered by Prudential Insurance Company using a blind fee schedule. Petitioner was advised by Prudential that his schedule initially provided various fees for various laboratory tests, but laboratories would not be advised of the amounts of payment or criteria used for assessing the appropriateness of ordering the tests. He was advised Prudential would reject any billings that were inappropriate. In 1976, the State of New Jersey began an investigation of its entire medicare/medicaid system. Initially, the inquiry with Petitioner's laboratory centered on whether he was performing the work ordered. It was determined that Petitioner performed all the work for which he billed the state. This investigation gave rise to an administrative complaint against Petitioner that charged him with overbilling. An administrative hearing was conducted which lasted eight months, during which 55 days of testimony were taken. The New Jersey hearing officer eventually that 50 percent of the orders and billings were correct; however, before the administrative order was entered, the Petitioner was indicated by the state of New Jersey and the United States for conspiracy to defraud under medicaid/medicare. The indictment alleged that Petitioner, Slaughtnick and other unnamed co-conspirators had conspired to defraud medicaid and medicare. The indictment was not introduced at this hearing; however, the Petitioner explained it alleged that the conspirators arranged to order more complex tests than were necessary, performed these tests, and then billed the state for the inflated service. Petitioner denied any knowledge of such a scheme to inflate test orders, however Petitioner did admit that his permitting Slaughtnick to prepare bills to medicaid and medicare in the laboratory's name was not authorized under the New Jersey law. Petitioner also denied knowledge of any kickbacks paid by Slaughtnick to any of the physicians or those in their employment. However, Petitioner stated he had no doubt after the fact that Slaughtnick was engaged in such a practice. Since his release from probation slightly more than 18 months ago, Petitioner has studied real estate and attempted to recover from the strain of the loss of his business, the long hearing, and his conviction and sentencing. The facts upon which this case are based occurred in 1975-76. Petitioner was sentenced in 1977, and has been released from confinement and probation since January, 1980. There is no evidence that petitioner has engaged in any conduct that would reflect adversely on his character since he terminated his laboratory work for medicaid/medicare in 1976.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner Edward J. Gibney be denied licensure upon the specific ground that under Section 475.17(1), Florida Statutes, he failed to present sufficient evidence of his reputation in the community to assure the Board of Real Estate that the interest of the public and investors would not be endangered unduly. DONE and ORDERED this 14th day of October, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 14th day of October, 1981. COPIES FURNISHED: Larry H. Spalding, Esquire 6360 South Tamiami Trail Sarasota, Florida 33581 Jeffrey A. Miller, Esquire Department of Legal Affairs Administrative Law Section The Capitol, 16th Floor Tallahassee, Florida 32301 Carlos B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street PO Box 1900 Orlando, Florida 32802
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him, as modified at hearing, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' prehearing stipulation filed October 21, 2004, the following findings of fact are made: Respondent is now, and has been since October 17, 1988, licensed as an insurance representative in the State of Florida holding 02-16, 02-18, and 02-40 licenses. His licensure identification number is A268617. In 2001, criminal charges were filed against Respondent in Orange County Circuit Court Case No. CR-01-2309/B. On or about February 20, 2002, Respondent submitted, in Orange County Circuit Court Case No. CR-01-2309/B, a verified Petition to Enter Plea of Guilty, which read as follows: My name is Robert Trueblood and I acknowledge that I am the Defendant charged in the above-styled criminal case[]. I am represented by a lawyer, Arthur L. Wallace, III. I wish to withdraw my plea of not guilty and plead guilty to: Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. I understand that each of these counts is a third degree felony and each is punishable by up to five (5) years in the Department of Corrections and a $5,000.00 fine. I have told my lawyer all the facts and circumstances about the charges against me. I believe that my lawyer is fully informed on all such matters. My lawyer has counseled and advised me on the nature of each charge; on any and all lesser included charges; on all possible defenses that I might have in this cause; and all the penalties that might be imposed if convicted.[1] I understand that I may plead not guilty to any offense charged against me. If I choose to plead not guilty, the Constitution guarantees me the right to maintain that plea and (a) the right to a speedy and public trial by jury; (b) the right to see, hear and face in open Court all witnesses called to testify against me and to cross- examine said witnesses; (c) the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor; (d) the right to have the assistance of a lawyer at all stages of the proceedings and to have one appointed for me if necessary; and (e) also the right to take the witness stand at my sole option; and if I do not take the witness stand I understand the jury, at my request, will be told that this may not be held against me. I also understand that by pleading guilty and admitting the truth of the charges against me, I am waiving all of the rights referred to in the above paragraph and the Court may impose the same punishment as if I had ple[]d not guilty, stood trial and been convicted. I know that if I plead guilty there will be no further trial of any kind, which means that by pleading guilty I waive my right to trial. I understand that some of the charges filed against me in this case may have occurred in whole or in part in Florida Counties other than Orange. However, I wish to resolve, in Orange County, all the charges filed in case number CR 01-2309 and do affirmatively waive my right to venue in other counties where the crimes may have occurred. I am 55 years of age. I have gone to school up to and including 5 y[ea]rs [of] college. I am not under the influence of any alcoholic beverage, drug or medicine at the time I sign this plea agreement. My physical and mental health is presently satisfactory. No one has made any promise, assurance or guarantee to me that I would receive any consideration in exchange for pleading guilty other than as set out in this plea agreement. I declare that no one has subjected me to any force, duress, threats, intimidation or pressure to compel or induce me to enter a plea of guilty. I am entering this plea with the understanding that I may serve every day of the sentence I am agreeing to in this plea agreement. Although I may have received advice or opinions as to the potential for some type of early release, I hereby acknowledge under oath that I have not relied upon those opinions or that advice as an inducement to enter this plea. I believe that my lawyer has done all that a competent attorney could to counsel and assist me. He has answered all my questions about this case to my satisfaction and I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME. I understand that if I am not a United States citizen, this criminal proceeding could cause me to be deported to the country of my origin. I understand that if I fail to pay any fines or costs as ordered by the Court, there will be a lien placed against me. I understand that I waive my right to appeal any rulings of the Court previously made in this case except as specifically stated herein. I understand that I have the right to appeal the judgment and sentence of the Court within thirty (30) days from the date of sentence. I understand that any appeal must be in writing. I understand that if I wish to take an appeal and cannot afford an attorney to help in my appeal, the Court will appoint an attorney to represent me for that purpose. I request the Court to accept my plea, knowing that upon it being accepted by the Court that nothing will remain to be done except for the Court to enter its judgment and sentence. I offer my plea freely and voluntarily and of my own accord and with full understanding of all matters set forth in the Information and in this Petition, the Certificate of my lawyer and Plea Agreement which are contained herein. Though I may have been assisted by my lawyer, I certify that the statement and representations herein above made are my own and have not been suggested directly or indirectly by him or anyone else, and that the decision to plead guilty was made by me. I further represent that my attorney has advised me of considerations bearing on the choice of which plea to enter and the pros and cons of such plea, the likely results thereof as well as any possible alternative which may be open to me. I represent to the Court that the plea bargain attached hereto was negotiated by my attorney with my full and complete consent thereto and that the decision to plead guilty was made by me. I fully concur in the efforts of my attorney and agree to the terms of the bargained plea. The Plea Agreement between Respondent and the prosecutor (which was referenced in Respondent's Petition to Enter Plea of Guilty) read as follows: The Defendant, and the State, pursuant to the provisions of Fla. R. Crim. P. 3.171, agree and stipulate to recommend to the Court the following resolution of the above- styled case: Defendant agrees to plead guilty as charged to Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. The State will stand silent as to the issue of adjudication. The Defendant shall be sentenced to five (5) years of supervised probation with all standard conditions, as well as the following special conditions: The Defendant shall testify truthfully when requested by the State, without the necessity of subpoena, in reference to any and all matters related to the facts and circumstances surrounding the Defendant's charges in this case. The Defendant shall pay restitution in an amount to be determined. The Defendant agrees the amount of restitution owed is not limited to the transactions to which he is entering this plea. Defendant shall pay court costs as directed by the Court. Defendant shall be required to pay $3,5000.00 for costs of prosecution to the Office of Statewide Prosecution, Department of Legal Affairs for the State of Florida. The Defendant shall pay $500.00 to the Florida Department of Law Enforcement and $500.00 to the Office of Comptroller, Department of Banking and Finance for costs of investigation involved in this case. The Defendant shall have no contact, directly or indirectly, with any of the witnesses in this case. [4]. If the Defendant violates any law while awaiting sentencing or if he fails to appear for sentencing as ordered by the Court, the State shall not be bound by this agreement and may recommend any lawful sentence and the Court may impose any sentence permissible under the law. The Defendant shall not be entitled to withdraw his plea of guilty in this case. [5]. The State agrees to nolle prosequi Count 4 - Sale of Unregistered Security, Count 5 - Sale of Security by Unregistered Agent, Count 6 - Sale of Unregistered Security, and Count 7 - Sale of Security by Unregistered Agent. [6]. If the sentence agreed upon in this plea agreement is a departure from the sentencing guidelines, both the State of Florida and the Defendant agree not to appeal this sentence. [7]. Should the Defendant violate his community control or probation, he affirmatively agrees that he shall be sentenced pursuant to the sentencing guidelines. [8]. The Defendant affirmatively agrees not to request that the Court impose a sentence lower than the sentence outlined above. [9]. Both the State and the Defendant understand that the trial judge has the ultimate responsibility for the sentence the defendant actually receives and that the recommendations made above are not binding on the trial judge unless adopted thereby. The Defendant shall not be entitled to withdraw his pleas of guilty in the event that the trial judge imposes a sentence different from that recommended above. On February 20, 2002, after Respondent entered his guilty pleas in Orange County Circuit Court Case No. CR-01- 2309/B to Count 2 (alleging the "Sale of Unregistered Security," in violation of Section 517.07, Florida Statutes) and Count 3 (alleging the "Sale of Security by Unregistered Agent," in violation of Section 517.12(1), Florida Statutes), the court accepted the pleas, withheld adjudication, and placed Respondent on two concurrent five-year terms of probation, with the special condition that he "serve 1 Day[] in the Orange County Jail, with 1 Day[]'s credit for time served." Other special conditions, including those described in the Plea Agreement set out above, were also imposed.2 Respondent failed to notify Petitioner in writing within 30 days after entering his guilty pleas in Orange County Circuit Court Case No. CR-01-2309/B that he had entered the pleas. Respondent has previously been disciplined by Petitioner's predecessor, the Department of Insurance (DOI). By Consent Order issued November 1, 2000, in DOI Case No. 31036-00-AG, Respondent was suspended for a period of three months. The Consent Order approved the parties' Settlement Stipulation for Consent Order, which provided, in pertinent part, as follows: * * * The Department has caused to be made an investigation of the Respondent and other individuals involved in the marketing and promotion of Legends Sports, Inc. As a result of that investigation, the Department alleges that the Respondent induced individuals to invest in Legends Sports, Inc. and represented that the investment was guaranteed by a surety insurer. However, the investment was not a good investment, the purported surety insurer did not exist or was not authorized to conduct business in this state, and the investment resulted in substantial losses to individual investors. The investigation resulted in a multi- count criminal information (hereinafter referred to as the "criminal actions") being filed against Respondent and other Legends Sports agents in the Seminole County Circuit Court in Sanford, Florida, Case No. 98- 4569CFW. Specifically, Respondent was charged with the following felonies: sale of unregistered securities, sale of securities by an unregistered dealer and unlawful transaction of insurance. Respondent has entered or will enter a plea of guilty to lesser included charges which are first degree misdemeanors. As a result of the plea, the Court in the criminal action, among other things, placed the Respondent on probation. As a condition of probation, the Court ordered the Respondent to pay restitution to the individuals who invested in Legends Sports through the Respondent and suffered financial losses as a direct consequence of such investments. The restitution amount represents the commissions received by the Respondent (hereinafter referred to as the "restitution order in the criminal action"). The Court in the criminal action also ordered that a criminal restitution judgment, that is not dischargeable in bankruptcy, be entered for the full amount of the promissory notes sold by the Respondent, unless a judgment has already been entered in that amount in favor of the Receiver for Legends Sports. Respondent denies knowingly misrepresenting the Legends Sports investment. * * * 13. This Settlement Stipulation for Consent Order is subject to the approval of the Insurance Commissioner. Upon his approval, and without further notice, the Insurance Commissioner may issue a Consent Order providing for the following: Incorporation by reference of the terms and conditions of this Settlement Stipulation For Consent Order. Respondent's licensure and eligibility for licensure as an insurance agent within the state are SUSPENDED for a period of three (3) months pursuant to section 626.641(1), Florida Statutes. The suspension shall take effect on 11/1/2000. * * * Approximately a year earlier, by Consent Order issued July 12, 1999, in DOI Case No. 99-CE58350, Respondent was fined $250.00 for failure to comply with continuing education requirements. Respondent's health has deteriorated in recent years. He has "been in the hospital several times with . . . heart [problems]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of twice violating Section 626.621(8), Florida Statutes, as alleged in Counts I and II of the Amended Administrative Complaint, and of violating Section 626.621(11), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint, and suspending his licenses for nine months for having committed these violations. DONE AND ENTERED this 7th day of December, 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 7th day of December, 2004.
Findings Of Fact On December 20, 1985, Respondent was certified by the Criminal Justice Standards and Training Commission and issued certificate no. 14-84-502-04. Respondent's work in law enforcement in Florida has been as a correctional officer. On the night of December 27, 1986, Respondent left his home to go to the American Legion in Lake City, Florida. On his way he met his friend Eddie Goodbread, Jr. Goodbread asked the Respondent if he could go with him to the American Legion Club. The Respondent agreed to have Goodbread come with him. Once at the American Legion the two men socialized. When they got ready to leave the club the Respondent left with his girlfriend. Goodbread took the Respondent's car and parked it on Myrtle Street. Goodbread then went with the Respondent and the Respondent's girlfriend and another person, which the Respondent describes as a girl, to the house of a friend other than Goodbread. At that point the Respondent and Goodbread split up again. Respondent was then with his girlfriend and Goodbread had the keys to Respondent's car. The Respondent came back later and met with Goodbread. Prior to the rendezvous, while Respondent had been with his girlfriend in her car, he had placed a .25 caliber automatic pistol in the glove box of that car. He had a license to carry this weapon issued by local authorities. The weapon was not contemplated as being a necessary item for his work as a correctional officer. When the Respondent got out of his girlfriend's car and approached Goodbread, the Respondent had the pistol in his coat pocket. Respondent told Goodbread that he was ready to go home because he had to go to work the next morning. Goodbread said, in kidding with the Respondent, that he did not have the car keys and that he had locked them in the car. Respondent recognized that he was joking with him. Nonetheless, Respondent looked in the car and saw that the keys were not there. Respondent returned to Goodbread and told Goodbread to give him his keys. Goodbread again told Respondent that the keys were locked in the car. Respondent told Goodbread that he was starting to go home. Goodbread's reaction to this remark was to get in the car and say "let's go." Goodbread then jumped out of the car and said that he was not ready to go. Respondent told him to come on and give him his keys. Respondent told Goodbread "come on man. Let's go." Goodbread told Respondent that he wasn't ready to go that he wanted to talk to some girl. Respondent said "come on let's go." Respondent took the gun out and said "you are going to make me put this on you. Come on let's go." Goodbread grabbed the gun unexpectedly and the gun discharged and killed Goodbread. Respondent never intended to injure Goodbread in his display of the pistol. Eight or ten witnesses saw the incident. It was investigated by the Lake City Police Department and Respondent cooperated in that endeavor to include turning over the pistol to the police and giving a voluntary statement about the incident. Respondent was charged through the Grand Jury of Columbia County, Florida, with the exhibition of the handgun in a rude, careless, angry, or threatening manner, not in necessary self defense and contrary to Section 790.10, Florida Statutes. A copy of that indictment may be found as Petitioner's Exhibit No. 1. As set forth in Petitioner's Exhibit No. 2, Respondent plead guilty to the offense and was fined $176. The firearm was forfeited to the state, he received 11 days in jail and a condition was placed upon him not to possess a firearm for one year. Respondent claims that as a consequence of the incident with his friend Goodbread he began to drink more than he had before. There being no frame of reference to compare his drinking habits before and after the incident, this comment has little utility in understanding his motivation to drink and drive. It has been established that on September 13, 1987, in the early morning hours of that day, specifically around 1:30 a.m., the Respondent was observed by Deputy Sheriff Charles R. Tate of the Columbia County, Florida Sheriff's office, driving in a reckless manner. In this incident the Respondent pulled out of Church Street onto Bay Avenue in Lake City, Florida, in a reckless manner. The officer speeded up in his attempt to stop the Respondent and engaged the emergency equipment in the officer's car. Respondent went west bound on Bay and turned south on Marion Street which is U.S. 41. In the course of this pursuit Respondent accelerated to speeds up to 65 miles per hour. Respondent finally pulled over around the intersection of Marion Street and Grandview Avenue. Respondent cooperated with Officer Tate in the investigation of the driving offense. This included the officer noting that the Respondent had the smell of alcohol about his person. As a consequence, the Respondent was asked to perform certain activities associated with a field sobriety test to ascertain if Respondent was capable of operating his motor vehicle. When the Respondent tried to perform the finger to nose test which is given with each hand, he was unable to do that with either hand. In trying to perform the walking test Respondent staggered and when he made the return trip in the walking test he nearly fell over and had to support himself. From the observations of the Respondent Officer Tate believed that the Respondent was driving under the influence when the stop was made. He arrested the Respondent for that offense and took him to the Florida Highway Patrol station where Robert Bellamy, a trained breathalyzer operator, administered a breathalyzer test to the Respondent. The results show that the Respondent was registering at .16 at 2:25 a.m., and registering at .15 at 2:27 a.m. with .10 being the legal presumption for impairment. Respondent was then taken to the Columbia County Jail. While at the jail correctional officer Jacklyn Yvonne Jones- Holland attempted to fingerprint his right hand. Ms. Holland knew of the Respondent before this evening but had had no opportunity before to speak to the Respondent. In the course of the fingerprinting Respondent took his left hand and rubbed it on the side of the officer's leg in the area of her groin. The first time he did this she stepped back on the chance that the Respondent was unaware of what he was doing at the time. However, when she moved the Respondent again put his hand on her leg in the area of her groin. Based upon the facts of this case in which Officer Tate describes the quality of the Respondent's impairment on a scale of 1 to 10, as being a 5 and Ms. Holland describes this impairment to be 6 or 7 on a scale of 1 to 10, Respondent is not found to be so under the influence that he did not realize what he was doing when inappropriately touching Ms. Holland in two instances. When he touched her the second time Ms. Holland went to another part of the building and made out a complaint against the Respondent for his assault and he was arrested for that offense. An Officer Myers read the Respondent his rights related to the assault during which conversation Respondent said, "I'm drunk. Oh yeah, that's what I'm here for. I'm drunk." There was no verbal exchange between the Respondent and Ms. Holland during the inappropriate touching. Ms. Holland had not invited those actions by the Respondent. The Petitioner's Composite Exhibit 3 constitutes the Florida Uniform Traffic Citation for the offense of driving under the influence and the disposition of that case in which the Respondent was fined $411, had his license suspended for six months, and attended school for persons who have driven under the influence. He also attended Alcoholics Anonymous and received other counseling contemplated for persons who may have drinking problems. Respondent says that he does not drink at present and no evidence was offered which would refute that claim. Respondent was charged under information with the unlawful, intentional and knowing touching or striking of Jacklyn Yvonne Jones-Holland and plead guilty to battery. He received a period of probation of one year for that offense. Certified copies of the information and order withholding adjudication of guilt and placing the defendant on probation can be found as exhibit numbers 5 and 4 respectively. The reckless display of the firearm leading to the death of his friend, and the battery committed on Ms. Holland are all indications of a lack of good moral character and are events for which the Respondent has no acceptable explanation or excuse. Driving under the influence is reprehensible but does not show a lack of good moral character.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered suspending the certificate of the Respondent for a period of six months. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3816 The facts as presented by the Respondent are commented on as follows: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not accepted to the extent that it argues that the incident involving the death of Mr. Goodbread is directly responsible for the fact that the Respondent was driving under the influence on the night in question and committed the battery on Ms. Holland. Furthermore, the suggestion that the Respondent was too under the influence to understand the fact of his battery against Ms. Holland is rejected. His testimony that he does not have a recollection of touching Ms. Holland runs contrary to the impression of the facts, that impression being that the act of the Respondent was volitional. The idea of his cooperation with Trooper Bellamy in the administration of the breathalyzer examination and the efforts to comply with what was expected of him in responding to the circumstance of the driving under influence offense is recognized as mitigation, but does not explain away the offense. The suggestion in Paragraph 7 that the death of the friend and the driving under the influence are interrelated is not accepted. Respondent did indicate that he was emotionally upset over the death of his friend, this would be expected but it is not clear to what extent his drinking increased following the death of the friend as compared to his drinking habits before that time. Respondent's suggestion that he is free from the effects of alcohol problems at present was not refuted. Therefore, there is no reason to believe that he presently has any problem with alcohol abuse. Reference to other traffic violations and his service record as a correctional officer leaves a neutral impression of the Respondent which is neither to his advantage or that of the Petitioner. Consequently, the facts of those prior events have not been reported in the fact-finding set forth in the Recommended Order. Paragraph 8 is contrary to facts found. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire Post Office Drawer 1792 Lake City, Florida 32056-1792 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
