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 =================================================================
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
Findings Of Fact At all times pertinent to the issues herein, the Criminal Justice Standards and Training Commission was the state agency responsible for the training and certification or law enforcement and corrections officers in Florida. Respondent was certified as a Corrections Officer under certificate No. 48891 on August 8, 1991. On June 29, 1994, Respondent was employed as a Corrections Officer I at the Hillsborough Corrections Institute in Tampa and had been so employed for approximately three and a half years. On that day, officer Ricardo Sementilli, a policeman with the Tampa Police Department's narcotics bureau, with approximately six and a half years experience in law enforcement, was targeting a house in Carver City, a Tampa housing area, for suspected unlawful narcotics activity. In the course of his investigation, Officer Sementilli was using the services of a confidential informant, Penny DuFour. Ms. DuFour, herself a former drug user, had been working as an informant for the police in general and for Officer Sementilli in particular for almost two years. On this evening, he proposed to have Ms. DuFour make a controlled purchase of illegal drugs at this particular residence. As preparation for the controlled buy, Ms. DuFour was searched by Officer Keene, also of the Tampa Police Department, to insure that she did not have any narcotics or other contraband in her possession. None was found during this search which is a normal procedure of the Tampa Police Department as a part of a controlled purchase by a confidential informant. Officer Keene was assigned to the Police Department's Tactical Division in narcotics enforcement and had worked in that division for approximately five years. She was working with Sementilli on this operation because he was well known and she was unknown in the geographic area in which the buy was to be made. Pursuant to the officers' plan, Officer Sementilli drove Ms. DuFour and Officer Keene to the intersection of Laurel and Manhattan Streets in Carver City. At this point, Keene, who had binoculars with her, hid out of sight behind a wall at Jefferson High School in a position where she could see Ms. DuFour. When Keene was in place, DuFour was sent out from the police vehicle to approach the residence in question. Keene was able to keep DuFour in sight the entire time using the binoculars. As DuFour approached the residence in question, a red compact car, occupied by Mr. Sampson and the Respondent, drove up. Both DuFour and Keene indicated Mr. Sampson was in the passenger seat and Respondent, who was dressed in a law enforcement uniform, was driving. DuFour went up to the vehicle and leaned in the passenger window. She asked Mr. Sampson if he was "straight." By this she meant to ask if he had any narcotics on his possession. In response, Sampson said he did, reached under the passenger seat of the car, and pulled out a plastic baggie in which were several pieces of what appeared to be cocaine. He placed the baggie in his lap and from it extracted a small piece of the substance which he gave to DuFour in exchange for $20.00 in U.S. currency which DuFour had been given by Officer Sementilli. All during this time, the baggie was in plain view on Sampson's lap and Respondent could see what was happening. She was either looking at Sampson or looking out the window, and Ms. DuFour was of the opinion that Respondent was fully aware of what was going on though she did not say anything. It is so found. After she received the substance from Sampson and paid him for it, DuFour left the vehicle and returned to where Officer Keene was located without either stopping or speaking with anyone on the way. When she got to Keene, she handed over the substance she had received from Sampson and was searched to insure she had not hidden any additional contraband on her person. She had not. Sementilli performed a field test of the substance at the scene. The test indicated the substance DuFour had received from Sampson in the presence of the Respondent was cocaine. This tentative identification was subsequently confirmed by a laboratory analysis conducted by the Florida Department of Law Enforcement. No issue was raised as to chain of custody of the sample in question or as to its identification as cocaine. At the time the sale took place from Sampson to DuFour, the officers obtained the license tag number on the vehicle being driven by Respondent and from which Sampson made the sale. A subsequent check with the Department of Motor Vehicles revealed that the vehicle was owned by Louis Sales, Respondent's father. Approximately one month after the sale described above, the car was discovered at the home belonging to Mr. Sampson's mother. As the officers were attempting to impound the vehicle, Respondent approached them. Keene at that time identified Respondent as the driver of the vehicle at the time of the sale in issue here and placed her under arrest. However, criminal charges were not preferred against her. At hearing, Respondent indicated that on the day of the alleged sale, she had been driven to work in her father's car by her boyfriend, Mr. Sampson, who was without his own vehicle at the time. While at work, she was interrogated by facility investigators relative to an allegation that she was introducing contraband into the corrections facility. Because this upset her, she asked for and was give permission to leave work early, approximately 5:30 PM. She then contacted Mr. Sampson who picked her up in her vehicle at approximately 7:00 PM that evening. When Sampson and Respondent left the corrections facility, they drove to Carver City because Sampson said he had to run an errand in the area. At that time Carver City, located some 45 minutes from Plant City, where Respondent lived, was known as an area of high drug activity. It was not uncommon for many drug dealers to be operating on the streets of the community. Respondent knew that Mr. Sampson was a drug dealer. He would sometime sell drugs openly in front of her. She had been present on several other occasions when DuFour had purchased cocaine from Mr. Sampson. At the time she met Mr. Sampson, in December, 1993, notwithstanding she denied it, Respondent knew he had just recently been released from prison because he told her so. He had been convicted of escape and grand theft. Nonetheless, they developed a relationship during the course of which she admittedly began to suspect he was dealing drugs. She did not ask him if this was so, however, even though she knew that her knowing association with a drug dealer could place her certification in jeopardy. When she became convinced that Sampson was dealing drugs, Respondent still did not terminate the relationship, however, claiming she was afraid to do so. When she was arrested as a result of the instant sale, however, she finally broke off the relationship. As a result of the controlled buy in issue, Mr. Sampson was convicted of sale of cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Sydell T. Sales, be found guilty of demonstrating less than good moral character, and that her certification as a corrections officer be placed on probation for a period of one year. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 December, 1995. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 208 Tampa, Florida 33607 A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent, Randy Lee Pomerantz, is currently eligible for licensure and is licensed in the State of Florida as a general lines, property, casualty, surety, and miscellaneous lines insurance agent. On or about May 30, 1989, the Respondent, along with one of his former employees, was charged by Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, in Case No. 89-20405, with fifteen felony counts and three misdemeanor counts. The fifteen felony counts included one count of a RICO violation, one count of scheme to defraud, three counts of grand theft in the second degree, and ten counts of grand theft in the third degree. On or about July 13, 1990, the Respondent entered a plead of nolo contendere to Count VIII of the information, which was one of the counts charging grand theft in the third degree in violation of Section 812.014, Florida Statutes. The prosecutor entered a nolle prosequi as to all other counts insofar as they related to the Respondent. Adjudication of guilt was withheld on Count VIII. The Respondent was placed on probation for three years and ordered to pay restitution in the amount of $2,325.03. The Respondent's plea of nolo contendere to Count VIII of the Information was a plea of convenience. The Respondent did not commit the acts alleged in Count VIII of the Information. As the Respondent explained at the hearing, at the time of his plea his wife was about to give birth and he did not feel he could take a chance on a "roll of the dice" with a jury trial.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance and Treasurer issue a Final Order in this case dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of February 1991. MICHAEL PARRISH 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 27th day of February 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4430 The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1, 2, and 4: Accepted. Paragraph 3: Rejected as contrary to the greater weight of the evidence. Although it is likely that the facts alleged in Count VIII of the Information related to the transaction of insurance business in this state, such is not established by clear and convincing evidence. And, in any event, the matter is irrelevant in light of the findings that the Respondent's plea was a plea of convenience and that the Respondent was not guilty of the crime charged. Findings proposed by Respondent: COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Ted Crespi, Esquire 110 Tower, Suite 815 110 S.E. 6th Street Fort Lauderdale, Florida 33301 Tom Gallagher Bill O'Neil State Treasurer and General Counsel Insurance Commissioner Department of Insurance The Capitol, Plaza Level and Treasurer Tallahassee, Florida 32399-0300 The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute. Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title 26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966. On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey. There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than 25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida. The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey. Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application for a Class "C" Private Investigator License. DONE and ENTERED this 21st day of April, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1992. Copies furnished: Ronald L. Jones, Esquire Jones and Koch 1200 East Lafayette Street, Suite 108 Tallahassee, FL 32301 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary, Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
The Issue In this case, the Petitioner seeks to impose discipline against the Respondent's certificate to be employed as a correctional officer based upon the allegation that the Respondent has committed acts which evidence a failure to maintain the qualifications incumbent upon a correctional officer working in Florida. In particular, it is alleged that the Respondent committed acts which demonstrated a lack of good moral character.
Findings Of Fact Facts Deemed Admitted The Respondent was certified as a corrections officer by the Petitioner on or about August 16, 1985 and was issued Corrections Certificate No. 28-85- 502-02. The Respondent was employed as a sworn corrections officer with the Alachua County Department of Corrections from June 17, 1985 to August 8, 1991. The Respondent, on or about April 20, 1990, was found guilty by a jury for the crime of resisting arrest without violence, a misdemeanor. The court withheld adjudication and sentenced the Respondent to six months of probation. The Respondent, on or about July 8, 1991, entered a plea of nolo contendere to the criminal charges of resisting arrest without violence and battery, both misdemeanors. The court sentenced the Respondent to one year of probation and withheld adjudication. On or about August 6, 1991, the Respondent became involved in a dispute with members of his family at his residence. The Respondent had consumed one or more alcoholic beverages immediately prior to and/or during the above-referenced family dispute. The dispute turned into a verbal and physical disturbance involving the Respondent and members of his family. The police were called to the Respondent's residence due to the above- referenced disturbance. After the police arrived with regard to the above-referenced disturbance, the Respondent barricaded himself inside his residence by locking the doors. After barricading himself inside his residence, the Respondent armed himself with a knife. The Respondent threatened to kill the police officers at the scene of the above-referenced disturbance if the officers attempted to apprehend him. Other Facts The offense described in paragraph 3 to these facts is related to the allegations contained in paragraph 2.(a) to the Administrative Complaint. The offense described in paragraph 4 to these facts is related to the allegations contained in paragraph 2.(b) to the Administrative Complaint, with the exception that paragraph 2.(b) makes no mention that a battery was committed. The offense described in paragraph 4 to these facts was considered in the Circuit Court of Union County, Florida, Case No. 90-29-CF. In addition to the service of one year of probation, the Respondent was ordered to successfully complete Anger Management as instructed by the Respondent's probation officer. On August 2, 1989, at approximately 9:30 p.m., in Alachua, Florida, Officer Lisa Brown, in pursuing her duties as a sworn officer, stopped the Respondent for a traffic violation. The Respondent was stopped because he had run two stop signs in Alachua. The stop signs were run at Northeast 8th Avenue crossing over State Road 235 and at Northwest 8th Avenue at Main Street. Officer Brown is now Officer Lisa Brown Haefner. At times relevant, Officer Haefner was serving as a police officer with the City of Alachua. Officer Haefner made the traffic-violation stop on Northwest 8th Avenue, off of Main Street, in Alachua. When the traffic-violation stop was made, Officer Haefner was assisted by Sergeant Cindy Dennison of the City of Alachua. Sergeant Dennison and Officer Haefner were driving separate patrol units on that night. Both officers observed the Respondent run the stop signs. Officer Haefner and Sergeant Dennison did not know Respondent when the traffic stop was made. After the stop, Officer Haefner asked the Respondent to exit his vehicle. The Respondent exited the vehicle. At that time, Officer Haefner asked the Respondent for identification. The Respondent replied that he "had none". Officer Haefner asked the Respondent for his name. The Respondent stated that he "didn't have a name". When the Respondent was contacted about the traffic violations, Officer Haefner asked for his driver's license, and the Respondent told Officer Haefner that he did not have a driver's license. The Respondent was acting irrational and irritated in the presence of Sergeant Dennison and Officer Haefner. Officer Haefner detected an odor about Respondent's person which she believed to be cannabis. Officer Haefner determined to arrest the Respondent for resisting or obstructing arrest without violence based upon the Respondent's failure to give information concerning his identity and the belief that she had cause to arrest Respondent. After informing the Respondent that he was being arrested for resisting or obstructing arrest without violence, Officer Haefner and Sergeant Dennison attempted to place handcuffs on the Respondent. This was a normal procedure. The Respondent resisted the placement of the handcuffs by twisting and stiffening his body and leaving his arms in front of him, which obstructed the officers' ability to secure the Respondent's arms behind him, as they desired. Under the circumstances, Officer Haefner sought the assistance of Officer Clovis Watson, Jr. (later Sergeant Watson) and Officer VanHorn. The other officers who were summoned for assistance were employed by the City of Alachua Police Department. The Respondent was eventually handcuffed, placed in Officer Watson's patrol car, and taken to the police station. When at the police station, he continued to be irrational and irritated. At one point in the encounter between Officer Haefner, Sergeant Dennison, and the Respondent, the Respondent offered to obtain identification from the back seat of his vehicle. The officers declined that request in that the Respondent was acting irrational and irritated; and based upon a fear for her personal safety, Officer Haefner would not allow the Respondent to access his vehicle. Respondent's offer to obtain identification came about at the point in time at which Officer Haefner and Sergeant Dennison attempted to handcuff the Respondent. The nature of the Respondent's irrationality and irritability was manifested by his being "real vocal, not wanting to cooperate, agitated as far as being stopped" and asking the officers "why are you harassing me?". The Respondent manifested this attitude notwithstanding that Officer Haefner had told him that he was being stopped for a traffic violation. The Respondent also manifested his irritability by having an agitated appearance. Before the Respondent was arrested for resisting or obstructing arrest without violence, he had been told several times not to return to his vehicle; however, he continued to walk toward his vehicle. It is at that point that Officer Haefner and Sergeant Dennison physically grabbed the Respondent and tried to restrain and handcuff him. The Respondent's actions prohibited Officer Haefner and Sergeant Dennison from performing their law-enforcement duties in making the traffic- violation stop. The Respondent continued to struggle when the officers were attempting to place the handcuffs on him after Officer Watson arrived at the scene by swaying back and forth. In the course of that struggle, Sergeant Dennison fell to the ground and the Respondent and Officer Watson fell on top of her. As a consequence, Sergeant Dennison sustained a concussion. The Respondent held his hands close to his body as a means to restrict the ability of the officers to handcuff him. The Respondent shook back and forth and this caused the officers and the Respondent to fall, injuring Sergeant Dennison. While the officers were attempting to handcuff the Respondent, he did not strike out at the officers. The Respondent resisted, in part, because he did not wish to be taken to the jail where he worked. On May 5, 1990, the Respondent, together with his brother and a friend, went to Union County, Florida, to a nightclub. When they arrived they were confronted by a number of persons who were already at the club. A fight ensued and the Respondent's brother was injured. The Respondent then took his brother to Ramadan Hospital to have his brother treated for injuries sustained in the fight at the club. Ramadan Hospital was located in Lake Butler, Union County, Florida. Union County Sheriff Jerry Whitehead received a call on his beeper at around 1:00 to 1:30 a.m. on the morning in question. He called the Union County Jail and was told about the fight at the local nightclub. He was also told that all of the deputy sheriffs had been dispatched to the nightclub. In turn, Sheriff Whitehead got dressed and started toward Lake Butler. Ramadan Hospital is located between his home and the Union County Jail. About a mile from the hospital, Sheriff Whitehead received a call from the sheriff's office dispatcher indicating that there was a disturbance at the hospital. Sheriff Whitehead responded to that call. When Sheriff Whitehead entered the emergency room at the hospital, the Respondent, his brother and the friend were in the waiting area of the hospital. The Respondent was standing in the hallway at that time, cursing and saying that he had just contacted his supervisor, taken to mean supervisor at the Alachua Correctional Facility, and that the Respondent was "fixing to have some people come over and they were going to get the situation straight". Sheriff Whitehead identified himself to the Respondent and asked the Respondent what the problem was. The Respondent indicated that he had been involved in an incident at the local nightclub and that there had been a fight and his brother had been injured. The Respondent told Sheriff Whitehead that he was going to "take this thing into his own hands". The Respondent was also indicating "things" that he wanted to have done concerning the incident. Respondent was cursing and using foul language. Sheriff Whitehead told the Respondent that he had to calm down or leave the premises. Sheriff Whitehead repeated this remark a number of times. After a time Sheriff Whitehead went to a telephone in the hospital and called the sheriff's office dispatcher and asked that a deputy sheriff be sent. During the course of these circumstances, the Respondent was belligerent and had the smell of alcohol about his person. The Respondent was being very belligerent in telling the nurses something to the effect that he was going to "tear that place up if they didn't get this done." This related to the Respondent's concern that a doctor was not available to attend to his brother at the hospital. The disturbance which the Respondent was causing was primarily directed to the hospital staff. The Respondent continued his outbursts for several minutes. In the course of this event, the Respondent identified himself as a law enforcement officer. Sheriff Whitehead told the Respondent that he needed to calm down and to let the Union County Sheriff's Department take care of the situation. Finally, Sheriff Whitehead believed that he had lost control over the Respondent's conduct and told the Respondent that he was going to place the Respondent under arrest. The Respondent replied that "he did not need to be arrested, wasn't going to be arrested." Sheriff Whitehead then placed his arm on the Respondent's arm and the Respondent snatched his arm away from Sheriff Whitehead. At that point Sheriff Whitehead took the Respondent through a set of doors to exit the hospital emergency room. They struggled out onto a patio area and onto the asphalt parking lot and then onto a grassy area where Sheriff Whitehead took the Respondent down and held him until a deputy sheriff arrived to assist. Sheriff Whitehead told the Respondent that he was being arrested for breach of the peace, an offense which Sheriff Whitehead believed he had reasonable cause to arrest the Respondent for. After the Respondent had been subdued and handcuffs placed on him, the Respondent became cooperative and acted remorseful, again explaining to Sheriff Whitehead that he was a correctional officer and that he was afraid he was going to lose his job because of the incident. The Respondent was then taken by a deputy sheriff to be transported to the Union County jail. When Sheriff Whitehead was trying to talk to the Respondent, the Respondent would swing his arms and on several occasions made cursing remarks toward the nurses, which Sheriff Whitehead believed was because doctors were not available to attend the Respondent's brother at that time. On August 6, 1991, Officers Glen Hammond, Donald Rice and Price responded to an alleged domestic disturbance call at 305 N.E. Fifth Street in Alachua, Florida. Those officers were working for the City of Alachua Police Department when they made the response. The alleged domestic disturbance involved the Respondent, his mother, sister and brother. When the officers arrived at the scene the other family members told the officers that the Respondent had been involved in a physical altercation with them and had battered them. The Respondent's mother told Officer Hammond that the Respondent had been smoking crack cocaine prior to the arrival of the officers. The family members told the officers that the Respondent was located in a wooded area near the residence. The officers went to find the Respondent so they could talk to him concerning the complaint by his family. Officer Wallace located the Respondent and brought him back to the residence. While standing in front of the residence, the Respondent was arguing with his mother and using profanity. In addition, he yelled at Officer Hammond a few times to the effect that the Respondent wasn't going to be taken into custody. At that juncture there was no intention by the officers to arrest the Respondent. At this time Officer Hammond did not observe anything about the Respondent's demeanor to suggest that the Respondent had consumed alcoholic beverages. After a short period, the Respondent left the area adjacent to the residence and returned to the woods. The officers again went to find the Respondent so that they could discuss the complaint. While the officers were trying to locate the Respondent for the second time someone started yelling that the Respondent had returned to the residence and was inside the residence. The officers then returned to the residence. When Officer Hammond walked up to the front of the residence to an area adjacent to a porch on the front of the residence, the Respondent opened the door and stepped out holding a knife which appeared to be a steak knife. The Respondent told Officer Hammond that Officer Hammond was not going to arrest him and that if Officer Hammond tried to come on the porch, the Respondent would kill Officer Hammond. The Respondent also mentioned the possibility that he would do harm to himself. While standing on the porch, the Respondent was not acting in a rational manner. After the Respondent threatened to kill Officer Hammond, the officer backed away from the residence and called for assistance from other law enforcement officers. Officer Hammond did this being fearful for his safety. A second brother of the Respondent arrived at the residence when the Respondent went in the house from the front porch. The second brother went inside to try and talk to the Respondent to defuse the situation. The second brother managed to have the Respondent come out of the house, at which point, the Respondent was charged with disorderly intoxication. At about the time the Respondent was arrested, Officer Hammond was close enough to the Respondent to notice that the Respondent had an odor of alcohol about the Respondent's person. When Office Wallace found the Respondent in the woods on the first occasion, the Respondent did not resist the officer in any manner and agreed to go back to the residence with the officer. When the Respondent returned to the residence on the first occasion, he stated that he would kill somebody first before he would go to jail. It is at that point that the Respondent broke from the scene and ran into the woods. While on the porch, the Respondent stated that he would kill any officer or take his own life, and that the Respondent was not going to go to jail. When the Respondent was first approached in the woods, Officer Wallace did not have grounds to arrest the Respondent. When the Respondent came back from the woods the first time, Officer Hammond was trying to interview the Respondent concerning the circumstances between the Respondent and his family that had caused the officers to be summoned. When the Respondent returned to the woods for the second time, the officers did not have cause to arrest the Respondent. When the Respondent told the officers that he was not going to be arrested or go to jail, upon the conversation that the officers held with the Respondent after he returned from the woods on the first occasion, the Respondent had not been told that he was being arrested. When the Respondent went back in the house from the front porch, he locked the doors to the residence and still had possession of the steak knife. The residence in question was reported to the officers as being the Respondent's mother's residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Certificate No. 28-85-402-02 be revoked. DONE AND ENTERED this 31st day of October, 1995, 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 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-5306 The following discussion is given concerning the proposed findings of fact by Petitioner. Petitioner's Facts: Paragraphs 1 through 3 are subordinate to facts found. Paragraph 4 is not necessary to the resolution of the dispute. Paragraphs 5 through 30 are subordinate to facts found. Paragraphs 31 and 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to facts found. Paragraph 34 is not necessary to the resolution of the dispute. Paragraph 35 constitutes a conclusion of law. Paragraph 36 is not necessary to the resolution of the dispute. Paragraphs 37 through the first sentence in Paragraph 42 are subordinate to facts found. The second sentence in Paragraph 42 is not necessary to the resolution of the dispute. Paragraphs 43 through 50 are subordinate to facts found. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302-1489 Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, FL 32605 A. Leon Lowry, II, Director Department of Law Enforcement Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302-1489
Findings Of Fact On August 6, 1980, the Respondent Gerald B. Natelson, was charged in the United States District Court, Eastern District of Missouri, with violating Sections 841(a)(1) and 846, Title 21, USC, by knowingly and willingly, combining, conspiring, confederating and agreeing with others to distribute and possess with intent to distribute, marijuana, methaqualone and hashish, Schedule I and II controlled substances. The Respondent Natelson pled guilty to violating Sections 841(a)(1) and 846, Title 21, USC, as charged in Count I of the Indictment, by knowingly conspiring with others to distribute and to possess with intent to distribute marijuana. The amount or quantity of marijuana which was involved in the conspiracy set forth in Count I, is not identified in the Indictment, the Judgment and Probation/Commitment Order entered December 22, 1980, or Judge Aronovitz's Order Granting Motion to Vacate, Set Aside or Correct Sentence, and Granting Petition for Writ of Habeas Corpus in Natelson v. United States, Case No. 82-542 SMA, entered May 10, 1982. The Indictment, at paragraphs 12, 14 and 22, sets forth the Respondent's involvement in the conspiracy, which consisted of meeting in Hollywood and Fort Lauderdale, Florida, on April 1 and 4, 1979, and Phoenix, Arizona, on June 1, 1979, with specifically named co-conspirators. Jose Fanelo, president of Universal Casualty Insurance Company and formerly regional director for the Department of Insurance, and Les Lloyd, regional investigator for the Department of Insurance, established that the Respondent had been a fit and trustworthy insurance agent. Additionally, the Respondent submitted various documents, identified as Respondent's Exhibits 2- 13, which support the opinions expressed by Fanelo and Lloyd that the Respondent is a fit and trustworthy insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent Gerald B. Natelson. DONE and ORDERED this 20th day of May, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983.
